Delhi High Court
Geeta Devi & Ors. vs Bharti Axa General Insurance Co. ... on 18 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 18, 2018
+ MAC.APP. 1122/2014
BHARTI AXA GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Navneet Kumar & Mr. Vikas
Bhadana, Advocates
Versus
GEETA DEVI & ORS. .....Respondents
Through: Mr. S.K. Tanwar, Mr. Sunil Sehgal
& Mr. Manoj Bhandari, Advocates
+ MAC.APP. 765/2016
GEETA DEVI & ORS. .....Appellants
Through: Mr. S.K. Tanwar, Mr. Sunil Sehgal
& Mr. Manoj Bhandari, Advocates
Versus
BHARTI AXA GENERAL INSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr. Navneet Kumar & Mr. Vikas
Bhadana, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals are directed against Award of
20th September, 2014 vide which compensation of `20,86,000/- with
interest @ 9% per annum has been awarded to Claimants.
MAC.APP. 765/2016
2. In the above captioned first appeal, appellant- Bharti AXA General
Insurance Company Limited (henceforth referred to as the "Insurer")
seeks exoneration from paying the awarded compensation, whereas in the
above captioned second appeal, the challenge is to the finding of
contributory negligence returned by the Tribunal.
3. Since these two appeals arise out of common Award of 20 th
September, 2014, therefore, both these appeals have been heard together
and are being decided by this common judgment. The facts as noted in
the impugned Award are as under:-
"It is the case of petitioners that on 14.12.2012, the
deceased Shri Bhagwan was travelling on his motorcycle
bearing No.A/F and was going to police office at Palwal
Haryana for official purpose. At about 9 a.m. when the
deceased reached Aligarh to Palwal road near Sehol
Chowk one car being driven in rash and negligent
manner hit the motorcycle of the deceased head to head
and ran away. The deceased Shri Bhagwan got
unconscious. In the meantime police reached at the spot
and took the deceased Shri Bhagwan to the Government
Hospital, Palwal, Haryana, where the doctor declared
him brought dead. In the meantime, on the DD call an
FIR No. 286/12 dated 14.12.2012 at PS Chand Hut,
Haryana, was lodged. The post mortem on the body of
late Shri Bhagwan was conducted vide post mortem
report dated 14.12.2012 in which the doctor opined the
cause of death as shock and hemorrhage due to ante
mortem head injury which was sufficient to cause death
in normal course of nature. It is stated that on
14.02.2013 one Shri Suresh Kumar S/o Shri Surjan Singh
Yadav R/o 414 Rajokri Village, New Delhi -38 appeared
MAC.APP. 765/2016
at the police station and informed that on 14.12.2012 his
driver namely Vinod Kumar was driving his Santro Car
and while going from Aligarh to Delhi, had hit one motor
cycle on the way near Sehol Chowk and being scared of
the same he ran away from the place of the accident. It is
averred that the deceased died on account of the accident
which occurred solely on account of negligence of the
respondent No.1 in the ordinary course of employment of
respondent No.2. Respondent No.3 is the insurance
company with whom the Hyundai Santro car was insured
and as such they all are jointly and severally liable for
the act of the respondent No.1."
4. The Motor Accident Claims Tribunal (hereinafter referred to as
„the Tribunal‟) has relied upon the evidence of Geeta, wife of Shri
Bhagwan, who had died in a vehicular accident on 14th December, 2012.
Shri Bhagwan (hereinafter referred to as „deceased‟) was aged 38 years
on the day of this vehicular accident and as per the evidence of Geeta
(PW-1), the deceased, was working as Constable in Haryana Police and
was earning `22,588/- per month. The Tribunal has calculated the loss of
dependency by adding 50% towards "future prospects" and since
deceased was married, one-third has been deducted towards the personal
expenses of the deceased and by applying the multiplier of 15, the "loss
of dependency" has been assessed at `19,16,000/-. Compensation of
`1,00,000/- has been awarded under the head of „Love and Affection‟ and
„Funeral Expenses‟ of `10,000/- have been granted by the Tribunal.
Under the head „Loss of Estate‟ `10,000/- has been granted and
compensation of `50,000/- has been awarded under the head "loss of
consortium". The break-up of compensation awarded by the Tribunal is
MAC.APP. 765/2016
as under:-
1) Loss of Dependency : `19,16,000/-
2) Love and Affection : `1,00,000/-
3) Loss of Consortium : `50,000/-
4) Loss of Estate : `10,000/-
5) Funeral Expenses : `10,000/-
__________
Total : `20,86,000/-
5. The challenge to the impugned award by learned counsel for
Insurer is on the ground that the insured car was not involved in this
accident, as FIR was registered against an unknown vehicle. It is next
submitted by counsel for Insurer that the negligence of driver of the
insured car does not stand proved and so, the Insurer has no liability to
pay the awarded compensation. Lastly, it is submitted by counsel for
Insurer that as per Haryana Compassionate Assistance to the Dependants
of Deceased Government Employees Rules, 2006, ex gratia amount equal
to the pay and other allowances last drawn by deceased-employee, is
being received by wife of deceased and so, there was no "loss of
dependency". Reliance is placed upon this Court‟s decision of 29th
February, 2016, in MAC.APP. 165/2013, titled as New India Assurance
Co. Ltd. Vs. Devki & Ors. Hence, dismissal of the claim petition is sought
by Insurer.
6. On the contrary, counsel for Claimants submits that the challenge
is to the finding of contributory negligence returned by the Tribunal. It is
submitted on behalf of Claimants that there was no contributory
negligence and so, deduction of 50% of the awarded compensation
MAC.APP. 765/2016
deserves to be set aside and the entire awarded amount ought to be
released to Claimants. Reliance is placed upon Supreme Court‟s decision
in Reliance General Insurance Co. Ltd. Vs. Shashi Sharma & Ors. (2016)
9 SCC 627 and Punjab and Haryana High Court‟s decision of 15th
January, 2018 in FAO No.2457/2013, titled as Reliance General
Insurance Co. Ltd. Vs. Geeta Devi and the decision of 13th November,
2017 in FAO No. 3439/2012, titled as Kamla & Ors. Vs. Krishna Tupe &
Anr.‟ and decision of 13th December, 2017 in FAO No. 5919/2010 titled
as Salochna Devi & Ors. Vs. Ashwani Kumar & Ors. and upon decision
in FAO No. 4983/2010, titled as National Insurance Company Ltd. Vs.
Salochna Devi & Ors. in support of above submissions.
7. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that the accident in question had
taken place on a highway from Aligarh to Palwal and the time of accident
was 09:00 a.m. in the month of December. Judicial notice can be taken
of the fact that there is fog on the highway in the morning hours in the
month of December. It is so said because the driver of the insured car in
question, in the reply filed to the claim petition, has taken the stand that
the accident in question had taken place due to fog. It is a case of head on
collision. The negligence was of motorcycle rider and the driver of
insured car, as they had not put on the blinkers while driving. When there
is fog, the minimum precaution which is required to be taken, is to switch
on the blinkers to avoid accident. In the considered opinion of this Court,
the Tribunal has rightly concluded that the accident had occurred due to
contributory negligence. There is no basis to conclude that there was no
MAC.APP. 765/2016
negligence of the driver of insured car. Reliance placed upon decision in
Devki (Supra) is of no consequence, as the said decision is
distinguishable on facts. In the face of reply of driver of insured car, it
cannot be said that the insured car was not responsible in causing the
accident in question. Driver of insured car and the deceased were equally
negligent.
8. On the dependency aspect, I find that in view of Supreme Court‟s
decision in Shashi Sharma (Supra), it cannot be said that there was no
dependency of the legal heirs upon the deceased. Supreme Court in
Shashi Sharma (Supra) has pertinently declared that the harmonious
approach for determining a just compensation payable under the Motor
Vehicles Act, 1988, is to exclude the amount received or receivable by the
dependants of the deceased government employee under the aforesaid
Rules of 2006 towards the head financial assistance equivalent to "pay
and other allowances" that was last drawn by the deceased government
employee in the normal course. It is clarified in the aforesaid decision
that other benefits extended to the dependants of the deceased
government employee in terms of Sub-Rule (2) to Sub-Rule (5) of Rule 5,
including family pension, life insurance, provident fund, etc. must remain
unaffected and cannot be allowed to be deducted, which any way would
be paid to the dependants of the deceased government employee,
applying the principle expounded in Helen C. Rebello Vs. Maharashtra
SRTC (1999) 1 SCC 90. Applying the aforesaid ratio to the facts of the
instant case, I find that "loss of dependency" has to be reassessed after
considering the ex gratia amount being received by the legal heirs of the
MAC.APP. 765/2016
deceased.
9. As per evidence of ASI Satish Kumar (PW-2), the concerned
official from the department of deceased‟s employer, monthly financial
assistance `23,700/- per month is being received by the family of
deceased as per Haryana Compassionate Assistance to the Dependants of
Deceased Government Employees Rules, 2006 and the last drawn salary
of deceased was `22,588/- per month. The amount received ex gratia
cannot be paid second time to the Claimants. It is a matter of fact that the
financial assistance being received by legal heirs of deceased is higher
than the last salary drawn by the deceased.
10. Since the Motor Vehicles Act, 1988 is a social legislation,
therefore, it is deemed appropriate to take ex gratia amount of `23,700/-
per month as the basis to assess the "loss of dependency" and after
making addition of 50% towards "future prospects" and deducting 1/3rd
towards his "personal expenses" and applying multiplier of 15, the "loss
of dependency" to legal heirs of deceased is reassessed as under:-
`23,700/- X 12 X 150/100 X 2/3 X 15 = `42,66,000/-
Due to contributory negligence of deceased, 50% has to be
deducted out of the awarded compensation, and so the "loss of
dependency" to legal heirs of deceased is `21,33,000/-.
11. The compensation granted by Tribunal under the non-pecuniary
heads needs to be brought in tune with Supreme Court‟s Constitution
Bench decision in National Insurance Company Ltd. Vs. Pranay Sethi &
ors. (2017) 16 SCC 680. Accordingly, compensation granted by the
Tribunal under head of „loss of Love and Affection‟ is disallowed. The
MAC.APP. 765/2016
compensation granted under the head „loss of estate‟ is enhanced from
₹10,000/- to ₹15,000/-. Similarly, „funeral expenses‟ are also increased
from ₹10,000/- to ₹15,000/-. However, compensation granted under the
head „loss of consortium‟ is reduced from ₹50,000/- to ₹40,000/-.
Accordingly, the compensation payable to legal heirs of deceased is re-
assessed as under:-
1) Loss of Dependency : `21,33,000/-
2) Loss of Consortium : `40,000/-
4) Loss of Estate : `15,000/-
5) Funeral Expenses : `15,000/-
__________
Total : `22,03,000/-
12. In light of the aforesaid, compensation of `20,86,000/- granted by
the Tribunal, is enhanced to `22,03,000/-, which shall carry interest @
9% per annum. The enhanced compensation alongwith interest be
deposited by the Insurer within six weeks with the Registrar General of
this Court and thereafter, it be disbursed to legal heirs of deceased in the
manner indicated in the impugned Award. Statutory deposit, if any, be
released to the Insurer as per rules.
13. With aforesaid modification in the impugned Award, the above
captioned two appeals are disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 18, 2018
r
MAC.APP. 765/2016
