Delhi High Court
National Insurance Co. Ltd. vs Pawan Kumar & Ors. on 13 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 13, 2018
+ MAC.APP. 315/2013
+ MAC.APP. 317/2013
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAMBIR SINGH & ORS
PAWAN KUMAR & ORS. .....Respondents
Through: Mr. Pankaj Gupta, Advocate for
Ms. Suman Bagga, Advocate for
respondent-ICICI Lombard Gen.
Insurance Co.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned first appeal arises out of impugned Award of
17th January, 2013, vide which the Motor Accident Claims Tribunal
(henceforth referred to as „the Tribunal‟) has awarded compensation of
`3,65,000/- (inclusive of interim award of ₹50,000/-) with interest @ 9%
p.a. to legal heirs of a Student-Vishal, aged 16 years, who had died in a
vehicular accident which took place on 9th December, 2005.
2. In this unfortunate accident, another Student-Pawan aged 18 years,
was grievously injured and the Tribunal vide separate Award of even
date, i.e. 17th January, 2013 , has granted compensation of `7,40,450/-
(inclusive of interim award of ₹25,000/-) with interest @ 9% p.a. to him,
which is under challenge in the above captioned second appeal.
3. Since these two appeals arise out of one vehicular accident,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
4. In above captioned appeals, National Insurance Co. Ltd.
(hereinafter referred to as „Insurer‟) seeks modification of the impugned
Award on the ground of contributory/composite negligence and seeks
reduction in the quantum of compensation. It is pointed out by Insurer's
counsel that appellant is the Insurer of WagonR car involved in this
accident and respondent-ICICI Lombard General Insurance Co. Ltd. is
the Insurer of the Tractor involved in this accident.
5. The factual background of this case, as noticed in the impugned
Award, is as under:-
"On the unfortunate day of 9.12.2005 the
deceased with his cousin brother Pawan were going from
their house to their fields in order to given tea to their
grandfather who was working in the fields. At about 5.45
PM when the deceased and his cousin reached on
Barwala Begumpur road, Delhi a collusion took place
between the three vehicles i.e. Wagon R bearing No.DL
9CM 3227, Eicher Tractor and motorcycle bearing
No.DL 8SW 3032 being driven by the deceased. As per
the version of the injured Pawan, the accident took place
due to the sole negligency of the driver of the Wagon R
car as the said maruti Wagon R bearing No. DL 9CM
3227 came from behind being rashly and negligent driven
by its driver hit the motorcycle and at the same time
Tractor which was passing from opposite direction also
hit. However, as per the police version the said accident
was caused due to the negligence and rash driving of the
driver of the said tractor. The deceased was taken to
Braham Shakti Hospital, Delhi for treatment where he
was declared brought dead while his cousin Pawan was
admitted with serious injuries. An FIR no.515/05 was
lodged with PS Bawana and a case U/s. 279/337/304A
IPC was registered against respondent No.1"
6. To render the impugned Award, the Tribunal has relied upon
evidence of Injured and legal heirs of deceased and other documentary
evidence on record. The Tribunal has assessed the income of deceased as
per the Second Schedule to the Motor Vehicles Act, 1988 and in case of
Injured, his income has been assessed on minimum wages and has made
addition of 30% towards „future prospects‟. The Tribunal has also found
Injured had suffered permanent disability of 65% in relation to right
lower limb and the functional disability has been also assessed by the
Tribunal at 65%. On the strength of evidence recorded, impugned Award
has been rendered.
7. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased-Vishal is as under:-
Loss of dependency : `2,25,000/-
Funeral charges : `10,000/-
Loss of Estate : `10,000/-
Loss of love, company and
affection etc. : `1,00,000/-
Loss of gratuitous services : `20,000/-
Total : `3,65,000/-
8. The breakup of compensation awarded by the Tribunal to Injured-
Pawan is as under:-
Loss of income : `10,841/-
Loss of future income : `6,59,609/-
Special diet expenses : `10,000/-
Conveyance charges : `10,000/-
Pain, suffering, mental shock and
trauma : `50,000/-
Total : `7,40,450/-
9. The challenge to the impugned Awards by learned counsel for
Insurer is on the ground that the accident in question had taken place due
to composite negligence of tractor, which had hit from front the
motorcycle, on which the deceased and injured were travelling. It is
further submitted that the accident in question had occurred also due to
the contributory negligence of deceased as he was a minor and was not
supposed to drive. It is submitted that the compensation granted to legal
heirs of deceased under the head of „love and affection‟ and „gratuitous
services‟ is required to be disallowed. It is next submitted by Insurer's
counsel that the Tribunal has erred in not making deduction of 50%
towards „personal expenses‟ as deceased was unmarried.
10. The compensation granted by the Tribunal to Injured is assailed on
the ground that no addition towards „future prospects‟ is to be made in a
case of injury. To submit so, reliance is placed upon Supreme Court's
recent decision in Anant Son of Sidheshwar Dukre v. Pratap Son of
Zhamnnappa Lamzane & Another, 2018 (10) SCALE 130. It is further
submitted that the functional disability of Injured ought to have been
assessed at 30%. Thus, it is submitted that the impugned Award deserves
to be modified.
11. Despite service, there is no representation on behalf of Injured and
legal heirs of deceased. Learned counsel for respondent- ICICI Lombard
General Insurance Co. Ltd. supports the impugned Award and refutes the
aforesaid stand taken on behalf of appellant-Insurer.
12. Upon hearing and on perusal of impugned Awards, evidence on
record as well as the decision cited, I find that in the face of evidence of
Injured-Pawan, it cannot be said that the accident in question had taken
place due to the composite/contributory negligence of the Tractor. It is so
said because there is no cross-examination of the Injured on the aspect of
composite or contributory negligence. Supreme Court in its recent
decision in Anant (supra), while dealing with the case of an injured, has
not made any addition towards „future prospects‟ and so, no addition
towards „future prospects‟ is required to be made. The Tribunal has erred
in adding 30% towards „future prospects‟.
13. The Tribunal has rightly assessed the income of the Injured on
minimum wages and has also correctly assessed the functional disability
at 65%. Multiplier of 18 has been rightly applied by the Tribunal.
Accordingly, the „loss of earning capacity‟ of Injured is reassessed as
under: -
`3614/- X 12 X 18 X 65/100 = `5,07,405.60/-,
(rounded off to `5,07,406/-)
14. Since no cross-objections have been filed by Legal Heirs of
deceased and the Injured, therefore, the compensation granted by the
Tribunal to the Injured under the „non pecuniary heads‟ is maintained.
Consequentially, the compensation payable to Injured-Pawan is
reassessed as under:-
Loss of earning capacity : `5,07,406/-
Special diet expenses : `10,000/-
Conveyance charges : `10,000/-
Loss of income : `10,841/-
Pain, suffering, mental shock and
trauma : `50,000/
Total : `5,88,247/-
15. In case of deceased, I find that the Tribunal has rightly assessed the
notional income of the deceased, who was a minor child, as per the
Second Schedule to the Motor Vehicles Act, 1988. Since no cross-
objections have been filed by Claimants, therefore, the multiplier applied
by the Tribunal is not interfered with. However, no deduction towards
„personal expenses‟ of deceased has been made, whereas 50% needs to be
deducted towards „personal expenses‟ of deceased. Accordingly, „loss of
dependency‟ is reassessed as under: -
`15,000/- X 15 X 50% = `1,12,500/-
16. The compensation granted by the Tribunal to legal heirs of
deceased-Vishal under the „non-pecuniary heads‟ is maintained as they
have not filed any cross-objections. Accordingly, the compensation
payable to legal heirs of deceased-Vishal is reassessed as under: -
Loss of dependency : `1,12,500/-
Funeral charges : `10,000/-
Loss of Estate : `10,000/-
Loss of love, company and
affection etc. : `1,00,000/-
Loss of gratuitous services : `20,000/-
Total : `2,52,500/-
17. In light of aforesaid, total compensation payable to Injured-Pawan
is reduced from `7,40,450/- to `5,88,247/- whereas in case of deceased-
Vishal, it is reduced from `3,65,000/- to `2,52,500/-. After deducting the
interim award of `25,000/- granted by the Tribunal to Injured-Pawan, the
net compensation payable to him comes to `5,63,247/-, whereas after
deducting the interim award of `50,000/- granted by the Tribunal to legal
heirs of deceased-Vishal, the net compensation payable to them comes to
`2,02,500/-. The modified compensation shall carry interest @ 9% per
annum. After refunding the statutory deposit alongwith excess amount, if
any, to appellant-Insurer, the modified compensation be disbursed to
Injured-Pawan and legal heirs of deceased-Vishal respectively, as per this
judgment and in the manner as indicated in the respective impugned
Awards.
18. With aforesaid modification in the impugned Awards, the above
captioned two appeals are disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 13, 2018
s
