Delhi High Court
National Insurnce Co Ltd. vs Nidhi Bhargava & Ors. on 20 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 20, 2018
+ MAC.APP. 589/2018 & C.M. 25892/2018
NATIONAL INSURNCE CO LTD. ..... Appellant
Through: Ms. Hetu Arora Sethi, Advocate
Versus
NIDHI BHARGAVA & ORS. ..... Respondents
Through: Mr. Parminder Singh Goindi,
Advocate
+ MAC.APP. 592/2018 & & C.M. 25911/2018
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Ms. Hetu Arora Sethi, Advocate
Versus
NIDHI BHARGAVA & ORS. ..... Respondents
Through: Mr. Parminder Singh Goindi,
Advocate
+ MAC.APP. 796/2018 & C.M. 36166/2018
NIDHI BHARGAVA & ORS. ..... Appellants
Through: Mr. Parminder Singh & Mr. Nikhil
Sharma, Advocates
Versus
JAVED AFTAR & ORS. (NATIONAL INSURANCE CO LTD.)
..... Respondents
Through: Mr. Parminder Singh Goindi,
Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
MAC.APP. 592/2018
MAC.APP. 796/2018
1. The above captioned three appeals arise out of impugned Award of
20th March, 2018, vide which the Motor Accident Claims Tribunal
(henceforth referred to as "the Tribunal") has awarded compensation of
`31,40,690/- with interest @9% p.a. to Claimants on account of death of
a Businessman- Kapil Bhargava, aged 43 years, in a vehicular accident
which took place on 12th August, 2008.
2. In this unfortunate accident in question, a Housewife- Nidhi
Bhargava, w/o late Kapil Bhargava, was grievously injured and the
Tribunal vide common impugned Award of 20th March, 2018, has granted
compensation of `4,29,543/- with interest @ 9% p.a. to her, which is
under challenge in the above appeals.
3. In the above captioned appeals, National Insurance Company
Limited (henceforth referred to as the "Insurer") seeks reduction in the
quantum of compensation granted by the Tribunal, whereas legal heirs of
deceased-Kapil Bhargava seek enhancement in the compensation
awarded by the Tribunal.
4. Since these three 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.
5. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Facts in brief as emerged from the claim suits
are that on August, 12, 2008, at about 7:30PM, offending
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MAC.APP. 796/2018
blue line bus bearing registration No. DL-1PB-0035, was
being driven by respondent Javed Aftar at very high
speed in a zig-zag manner at DBG road from Karol Bagh
side to Anand Parbat. While respondent No.1 was driving
the said bus in above said manner, firstly hit a motor
cycle bearing registration No.-6SX-6483, which was
being driven by Kapil Bhargava and his wife Nidhi
Bhargava was a pillion rider. At the time of accident,
deceased Kapil Bhargava was waiting for his signal at
the red light point. After hitting motor cycle, bus dragged
the deceased, consequently, Kapil Bhargava sustained
crushed injuries as front wheel of the bus ran over his
body. Thereafter, the bus hit the claimant Asghar Ali, who
was crossing the road. Consequently, he also sustained
multiple grievous injuries. Thereafter, the bus hit another
motor cycle bearing registration No. DL-4SAG-3712,
which was being driven by deceased Vipin Kumar Dubey,
who was also crushed by the bus. Though all the injured
were taken to Bali Nursing home, but motor cyclist Kapil
Bhargava and Vipin Kumar Dubey succumbed to their
injuries whereas Smt. Nidhi Bhargava wife of Kapil
Bhargava and Asghar Ali sustained grievous injuries. In
this regard, an FIR No.230/2008 for the offence
punishable under Section 279/338/304A IPC was
registered at PS DBG Road."
MAC.APP. 592/2018
MAC.APP. 796/2018
6. To render the impugned Award, the Tribunal has relied upon
evidence of Injured-Nidhi Bhargava, who has also deposed on behalf of
legal heirs of deceased and other evidence on record. The breakup of
compensation awarded by the Tribunal to legal heirs of deceased -Kapil
Bhargava is as under:-
1 Loss of income `30,70,690/-
2 Loss of estate `15,000/-
3 Loss of consortium `40,000/-
4 Funeral expenses `15,000/-
Total `31,40,690/-
(rounded off to
`31,41,000/-)
7. The breakup of compensation awarded by the Tribunal to Injured-
Nidhi Bhargava is as under:-
1. Loss of income `18,480/-
2. Medical expenses `35,363/-
3. Conveyance charges `10,000/-
4. Special diet `10,000/-
5. Attendant charges `55,700/-
6. Mental and physical shock `1,50,000/-
7. Pain and Suffering `1,00,000/-
8. Loss of life amenities `25,000/-
5. Loss of inconvenience `25,000/-
hardship/disappointment/mental
stress
Total `4,29,543/-
(rounded off to
`4,30,000/-
8. The challenge to the impugned Award by learned counsel for
MAC.APP. 592/2018
MAC.APP. 796/2018
Insurer in the case of deceased-Kapil Bhargava is on the ground that
while assessing his income, the Tribunal has taken into consideration the
income tax return for the assessment year 2008-09. Attention of this
Court is drawn to copy of acknowledgement of 10th September, 2008 on
record to show that the income tax return for the assessment year 2008-09
was filed after the accident. So, it is submitted that average of income tax
return for the assessment year 2007-08 and 2008-09 ought to be the basis
for assessing the income of deceased. In respect of Injured- Nidhi
Bhargava, it is submitted by counsel for Insurer that the compensation
granted by the Tribunal under the heads of "pain and suffering" and
"mental and physical shock" is not justified, as both these heads are
overlapping. Hence, it is submitted that the quantum of compensation
granted to Injured-Nidhi Bhargava and Claimants of deceased- Kapil
Bhargava needs to be suitably reduced.
9. On the contrary, counsel for Claimants and the Injured seeks
modification of the impugned Award on the ground that quantum of
compensation granted is inadequate. Counsel for Claimants submits that
in the case of deceased-Kapil Bhargava, the applicable multiplier is of 15
and the Tribunal has erred in applying multiplier of 14, as the deceased
was aged 43 years on the day of accident. It is submitted that the
compensation granted to Injured- Nidhi Bhargava under the heads
"conveyance charges" and "loss of amenities of life" is meager and it be
suitably enhanced. Reliance is placed upon decisions in Santosh Devi Vs.
National Insurance Company Ltd. & Ors. 2012 (6) SCC 421; Rajesh and
Ors. Vs Rajbir Singh & Ors. (2013) 9 SCC 54 and Shashikala & Ors. Vs.
MAC.APP. 592/2018
MAC.APP. 796/2018
Gangalakshmamma & Anr.
10. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that in the case of deceased-Kapil
Bhargava, the income tax returns for assessment years 2008-09 was filed
on 10th September, 2008 i.e. after the day of accident and so, it has to be
excluded from consideration. The income of deceased-Kapil Bhargava
has to be assessed on the basis of previous assessment year's income tax
return i.e. for the year 2007-08. The gross income of deceased in the
assessment year 2007-08 was `1,25,600/- and after deducting tax of
`1610/-, the net income of deceased is assessed at `1,23,990/-. Deceased-
Kapil Bhargava was aged 43 years on the day of accident and in view of
Supreme Court's decision in Sarla Verma (Smt.) & Ors. Vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the Tribunal has
rightly applied multiplier of 14. In light of Supreme Court's Constitution
Bench decision in National Insurance Company Ltd. Vs. Pranay Sethi &
ors. (2017) 16 SCC 680, the Tribunal has rightly made addition of 25%
towards "future prospects. In view of aforesaid, the "loss of dependency"
of deceased- Kapil Bhargava is reassessed as under:-
`1,23,990/- X 14 X125/100 X 3/4 = `16,27,370/-
11. The compensation granted to Claimants of deceased- Kapil
Bhargava under the non-pecuniary heads is found to be in tune with
Supreme Court's Constitution Bench decision in Pranay Sethi (Supra),
and is therefore maintained. The compensation payable to legal heirs of
deceased- Kapil Bhargava is accordingly reassessed as under:-
MAC.APP. 592/2018
MAC.APP. 796/2018
1 Loss of income `16,27,370/-
2 Loss of estate `15,000/-
3 Loss of consortium `40,000/-
4 Funeral expenses `15,000/-
Total `16,97,370/-
12. So far as compensation granted to Injured- Nidhi Bhargava is
concerned, I find that adequate compensation under the head of "pain
and suffering" has to be granted. But the Tribunal has erred in granting
compensation of `1,50,000/- under the over-lapping head of "mental and
physical shock", which is hereby declined. The Tribunal has also erred in
granting compensation of `25,000/-under the head "loss of inconvenience
hardship/ disappointment/mental stress" and is therefore, declined. The
compensation of `1,00,000/- granted under the head "pain and suffering"
is found to be inadequate and therefore it is increased to `1,50,000/-. The
compensation of `25,000/- granted under the head "loss of amenities of
life" is also inadequate. It is so said because the Injured in her evidence
has deposed that she had remained on bed for about two years. Although
documentary proof has not been placed on record but considering the
medical record of Injured, the compensation granted to Injured-Nidhi
Bhargava under the head "loss of amenities of life" is increased to
`1,00,000/-. The Tribunal has granted a paltry sum of `10,000/- under the
head "conveyance charges" and it is also increased to `25,000/-.
However, the compensation granted by the Tribunal under the other
heads is found to be justified and is therefore maintained. Accordingly,
the compensation granted to Injured-Nidhi Bhargava is re-assessed as
under:-
MAC.APP. 592/2018
MAC.APP. 796/2018
1. Loss of income `18,480/-
2. Medical expenses `35,363/-
3. Conveyance charges `25,000/-
4. Special diet `10,000/-
5. Attendant charges `55,700/-
6. Pain and Suffering `1,50,000/-
7. Loss of life amenities `1,00,000/-
Total `3,94,543/-
13. In the light of aforesaid, the compensation payable to legal heirs of
deceased-Kapil Bhargava is reduced from `31,41,000/- to `16,97,370/-
and compensation payable to Injured- Nidhi Bhargava is reduced from
`4,30,000/- to `3,94,543/-. The modified compensation shall carry
interest @ 9% per annum and it be released forthwith to the legal heirs of
deceased- Kapil Bhargava and Injured-Nidhi Bhargava in the manner, as
indicated in the impugned Award. Statutory deposit alongwith excess
deposit, be refunded to the Insurer.
14. With aforesaid modification in the impugned Award, the above
captioned three appeals and the applications are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 20, 2018
r
MAC.APP. 592/2018
MAC.APP. 796/2018
