Full Text
$-14 HIGH COURT OF DELHI
Date of Decision: 19th January, 2015
ICICI LOMBARD GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Ms.Suman Bagga, Advocate
Through: Mr. Kuldeeep Kumar, Advocate with Mr. Manish Garg, Advocate for Respondents no.1 to 3.
JUDGMENT
1. The Appellant impugns judgment dated 25.11.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of Rs.8,18,662/- was awarded in favour of Sita Ram Garg, father of deceased Amit Kumar, who died in a motor vehicular accident which occurred on 20.11.2010.
2. It is urged by the learned counsel for the Appellant that the deceased was a bachelor aged 29 years. Sita Ram Garg, father 2015:DHC:547 of the deceased was aged 56 years and thus, he cannot be considered a dependant and only 15% of the deceased’s income could have been awarded towards loss to estate as the deceased was to get married in due course and was to support his own family as well. The deceased had two brothers aged 35 and 32 years and thus, the father cannot be said to be solely dependent on the deceased.
3. On the other hand, the learned counsel for Respondents no.1 to 3 submits that the compensation awarded is too small and meagre. The deceased was a highly qualified person as he was not a graduate as taken by the Claims Tribunal but was a postgraduate in Political Science and had also completed M.Phil. It is urged by the learned counsel for the Respondents that the compensation awarded is liable to be enhanced.
4. I have before me the Trial Court record. Sita Ram Garg, father of the deceased filed his Affidavit Ex.PW1/A. He testified that he was solely dependent on the deceased. He further deposed that Rajiv Garg, another brother of the deceased Amit Kumar was handicapped and was also fully dependent upon the deceased Amit Kumar. Sita Ram Garg was subjected to crossexamination. He was categorical that he was unemployed and was not earning anything. He further added that his son Sanjay was working but his third son Rajiv was not earning. The testimony of PW[1] Sita Ram Garg that Rajiv was handicapped was also not challenged in cross-examination. In view of this, I am not inclined to agree with the submission raised on behalf of the Appellant Insurance Company that the legal representatives are not entitled to any compensation towards loss of dependency. Following Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, I shall assume that in the circumstances of the case, 50% of the income shall be taken as the personal and living expenses of the deceased and loss of dependency has to be determined on the balance of 50%.
5. Now, the question is what was the income of deceased Amit Kumar. Evidence was led that deceased Amit was getting a sum of Rs.15,000/- per month. A salary certificate was produced, but the same was disbelieved and the loss of dependency was awarded taking the income of the deceased to be that of a graduate as per the Minimum Wages Act, 1948. Evidence was also led that the deceased Amit had bright future prospects and he could have been earning Rs.50,000/- per month in future.
6. Qualifications of the deceased Amit Kumar to the effect that he was M.A. in Political Science and M.Phil. was established from the certificates placed on record before the Claims Tribunal. Averments made in the Affidavit with regard to qualifications were also not challenged. Considering the qualifications of the deceased, even if the salary certificate is not believed, his financial income as per his qualifications ought to have been taken as Rs.15,000/- per month which was claimed by the claimants. The loss of dependency thus comes to Rs.8,10,000/- (Rs.15,000 x 1/2 x 12 x 9).
7. The Claims Tribunal had awarded a sum of Rs.1,00,000/.-, Rs.25,000/- and Rs.5,000/- towards loss of love and affection, funeral expenses and loss to estate respectively. The same being in consonance with the settled law, I find no ground to interfere with the same.
8. The total compensation therefore comes to Rs.9,40,000/-.
9. It is urged by the learned counsel for the Appellant that in the absence of any cross-objections, the Court is not empowered to enhance the compensation. The question was dealt with at great length by this Court in Oriental Insurance Company Limited v. Mamta Kumar & Ors., MAC APP.629/2010, decided on 06.09.2012. In paras 13 to 19, this Court held as under:
14. In National Insurance Company Ltd. v. Rani, 2006 ACJ 1224, a Division Bench of Madras High Court held that without filing any Appeal or Cross-Objections, High Court is competent to enhance the compensation in favour of a victim of a motor vehicle accident by invoking provisions of Order XLI Rule 33 Code of Civil Procedure(Code). Para 16 of the report is extracted hereunder:
15. In Oriental Fire and General Insurance Co. Ltd. v. Amarsingh Pratapsingh Sikliker, 1(1993) ACC 627, a Division Bench of Gujarat High Court held that the Appellate Court was empowered to grant adequate compensation so as to do substantial justice between the parties even in absence of Cross-Objections or Appeal. Para 17 of the report is extracted hereunder: “17. It becomes very clear from the aforesaid provisions that the appellate Court is empowered to grant adequate relief so as to do substantial justice between the parties even in absence of crossobjections or appeal….”
16. In Sone Ram v. Jayaprakash, AIR 1986 MP 21, the High Court of Madhya Pradesh exercising power under Order XLI Rule 33 of the Code enhanced the compensation granted by the Claims Tribunal even though no Appeal was preferred by the Claimant. In the case of Sewaram alias Sewan v. Nanhe Khan alias Asgar Beg, 1987 ACJ 354(MP), the High Court of Madhya Pradesh awarded 10% interest on the compensation amount in the absence of any Appeal or Cross- Objections by the Claimants.
17. A learned Single Judge of this Court in National Insurance Co. Ltd. v. Komal & Ors., MANU/DE/2870/2012, (MAC. APP. No.595/2007 decided on: 27.04.2012) referred to the judgments of the Supreme Court in Pannalal v. State of Bombay, AIR 1963 SC 1516; Rameshwar Prasad v. M/s Shyam Beharilal Jagannath, (1964) 3 SCR 549; Nirmal Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874; Giasi Ram v. Ramjilal, AIR 1969 SC 1144; Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 2 SCR 932; Mahant Dhangir v. Madan Mohan, (1988) 1 SCR 679; State of Punjab v. Bakshish Singh, (1999) 8 SCC 222 and judgments of various High Courts to opine that the High Court is empowered to enhance the compensation without filing any Appeal or Cross-Objections by a Claimant.
18. In Ibrahim v. Raju, AIR 2012 SC 534, a compensation of `3,00,000/- was claimed by the Appellant which resulted in an award of `60,000/- by the Claims Tribunal. The compensation was enhanced to `1,89,440/- by the High Court, which was enhanced to `6,00,000/- by the Supreme Court. Para 21 of the report is extracted hereunder:
19. In New India Assurance Co. Ltd. v. Gopali & Ors., Civil Appeal No.5179 of 2012 (arising out of SLP (C) No.11345 of 2007) decided by the Supreme Court on 05.07.2012, the New India Assurance Co. Ltd. challenged an award of compensation of `6,45,300/-. The compensation was, however, enhanced to `10,63,040/- by the Supreme Court.”
10. It is therefore, evident that even without any cross-objections being filed the Claims Tribunal and the High Court can grant compensation more that what is claimed by a victim in a motor vehicular accident.
11. The compensation is accordingly enhanced by Rs.1,21,338/which shall carry interest @ 7.5% per annum from the date of filing of the claim petition/DAR upto the date of deposit of the compensation.
12. Respondent no.1, father of deceased Amit Kumar shall be entitled to 75% of the enhanced compensation. Rest 25% shall go to Respondent no.3, who is the handicapped brother of deceased Amit Kumar.
13. On deposit, 70% of the enhanced compensation shall be held in Fixed Deposit for a period of two, four and six years in equal proportion. Rest 30% shall be released on deposit.
14. The Appellant Insurance Company is directed to deposit the enhanced compensation with UCO Bank, Delhi High Court Branch within six weeks from today.
15. The appeal is disposed of accordingly.
16. Pending applications also stand disposed of.
17. Statutory amount of Rs.25,000/-, if any, shall be refunded to the Appellant Insurance Company.
JUDGE JANUARY 19, 2015 pst