Full Text
HIGH COURT OF DELHI
Date of Decision: 06th December, 2024
11472/2021, CM APPL. 7292-7293/2022 SHRIRAM GENERAL INSURANCE CO LTD
1001, LGF, Arya Samaj Road Karol Bagh, New Delhi .....Appellant
Through: Mr. Pankaj Seth, Advocate.
JUDGMENT
1. Hardan Yadav, S/o Shri Chhotu Ram.....Respondent No.1
2. Smt. Kanta Devi, W/o Shri Hardan Yadav.....Respondent No.2
3. Satish Yadav, S/o Shri Hardan Yadav.....Respondent No.3 All R/o Ward No. 3, Dabia Neem Ka Thana Sikar 332718 Rajasthan.
4. Chandra Yadav S/o Shri Ram Mahal Yadav R/o Ladi Tiianga Mohaba, U.P......Respondent No.4.
5. Satender Singh, S/o Shri Pal Singh R/o Village Sanpki, Nangli Tehsil Sohna, Gurgoan Haryana......Respondent No.5. Through: Appearance not given. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act, 1988”) has been filed on behalf of the Appellant/Insurance Company to challenge the Award dated 08.02.2016 vide which a compensation in the sum of Rs. 16,000/- along with interest @ 9% per annum on account of demise of Shri Suresh Kumar (hereinafter referred to as “deceased”) in the road accident on 06.11.2013.
2. Briefly stated, on 06.11.2013, the deceased-Smt. Sumita along with her family members was travelling in a Cab/Taxi bearing No. HR-55NT- 1279 being driven by Shri Suresh Kumar/deceased herein who had also died in the same accident. At about 05:45 A.M., when the Cab/Taxi reached near Subroto Park Red Light, Dhaula Kuan side Delhi Cantt., Delhi, when the offending Truck bearing No. HR-55E-9367 by Respondent No. 4/Chandra Yadav stopped suddenly because of which, Cab/Taxi collided in the backside of the said Truck, resulting in fatal injuries to the deceased. The deceased was taken to the Hospital, where he was declared brought dead.
3. The FIR No. 380/2013 under Sections 279/337/304A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”) registered at Police Station Delhi Cantt., Delhi. After completion of investigations, the Final Report was filed as abated since Shri Suresh Kumar had died.
4. The Claimants filed a Claim Petition under Section 166/140 of Motor Vehicle Act, 1988. After trial, the total compensation granted was in the sum of Rs.8,85,000/- along with interest @ 9% per annum on account of demise of Shri Suresh Kumar /deceased herein.
5. The Appellant/Insurance Company has challenged the Award on the following grounds: -
(i) that the deceased was solely responsible for the accident and no compensation can be awarded;
(ii) that the offending vehicle was the Innova Taxi/Cab bearing No.
HR-55NT-1279, but the owner and the Insurance Company of the Innova vehicle have intentionally not been impleaded as a party to the Claim Petition, which is bad for misjoinder and non-joinder of necessary party;
(iii) that no Chargesheet has been filed against Respondent NO. 4/Chandra Yadav, the Driver of the offending Truck. Therefore, no fault on the part of the Truck Driver has been proved and the compensation is not payable by the Appellant/Insurance Company;
(iv) that the Multiplier of 17 has been wrongly applied as the deceased was 45 years old;
(v) that 50% of Future Prospects have been wrongly granted to calculate the Loss of Income; and
(vi) that the interest @ 9% per annum has been granted which is on the higher side.
6. Learned counsel for the Respondents has submitted that these aspects have been considered by the learned Tribunal in detail and there is no merit in the present Appeal.
7. Submissions heard and record perused. Negligence of the Deceased/Cab(Innova) Driver:-
8. The first ground of challenge is that the negligence was solely of the Innova Car Driver against whom the FIR got registered and there was no negligence on the part of the Truck Driver. Therefore, no liability to pay compensation can be fastened on the Appellant/Insurance Company with whom the Truck was insured.
9. The perusal of the FIR shows that the FIR recorded the involvement of both the vehicles i.e., the offending Truck and the Cab/Taxi (Innova). Further, the Chargesheet under Section 173 of MV Act, 1988 got filed against the Driver of lnnova car/Suresh Kumar, against whom the offence stood abated as he had expired in the accident; the copy of the challan was also placed on record. It was also recorded in the Chargesheet that the Truck was parked on the road without any indicator or warning sign in a negligent manner by its Driver, who was challaned under Sections 122/177 of MV Act, 1988.
10. The learned Tribunal referred to the Kalandara under Sections 122/177 of MV Act, 1988, and observed that the testimony of the eyewitness//Ombir Singh (who was also injured in the same accident) coupled with the Kalandara proved the contributory negligence on the part of the offending Truck Driver. The learned Trial Court has given the cogent explanation that the vehicles were compositely involved. Therefore, this challenge of the Appellant/Insurance Company is without any merit and warrants no interference. Multilplier:-
11. The Appellants have contended that the deceased was 45 years old and the learned Tribunal wrongly applied the Multiplier of 17.
12. As per the copy of the Driving License of the deceased, Shri Suresh Kumar, his date of birth was 02.01.1985 and the accident occurred on 06.11.2013. The deceased was aged 27 years and 10 months on the date of accident. As per the judgment of the Hon’ble Supreme Court in Sarla Verma and Ors. vs. Delhi Transport Corporation and Ors., 2009 ACJ 1298 (SC) the multiplier of “17” applies where the age of the deceased is “26-30 years”.
13. Thus, the learned Tribunal has correctly applied the multiplier of
17. Future Prospects:-
14. The Appellants have challenge the Future Prospects given by the learned Tribunal at the rate of 50%.
15. In the case of National Insurance Co. Ltd. vs. Pranay Sethi, (2017) 16 SCC 680, it was held as under:
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
16. The learned Tribunal has wrongly taken the Future Prospects at the rate of 50%. Since from the record, it is evident that the deceased was working as a Cab Driver, Future Prospects at the rate of 40%, has to be taken, as per Pranay Sethi (supra), which is accordingly, revised.
17. The total loss of dependency is calculated as under: i. Rs. 9802 p.m. + 40% (Future Prospects) = Rs. 13,722.8/-; ii. Rs. 13,722.[8] - 1/2 (Personal Expenses) = Rs. 6,816.4/-; iii. Rs. 6,816.4/- x 12 x 17 = Rs. 13,99,725.6/-. Loss of Consortium:-
1. While re-considering the calculation of the compensation amount, it has been noticed that the compensation awarded under Loss of Consortium has to be re-calculated in the light of observations of the Apex Court’s decision in Pranay Sethi, (supra) which provides that each Claimant shall be entitled to Rs.40,000/- towards Loss of Consortium. The learned Tribunal fell in error in granting a lump sum of Rs.10,000/- to all the Claimants.
18. The deceased is survived by his father, mother and brother and each is entitled to Rs. 40,000/-.
19. Therefore, the Loss of Consortium is enhanced to Rs. 40,000 x 3 (father, mother, brother) = Rs. 1,20,000/-. Rate of Interest:-
20. The Appellants contend that the rate of interest granted by the learned Tribunal @ 9% per annum, is on the higher side.
21. In National Insurance Co. Ltd. vs. Yad Ram, 2023 SCC OnLine Del 1849, this Court has opined that the rate of interest awarded on compensation payable should be decided on a case-to-case basis, rather than having a fixed measure of the same, as what may be reasonable in one case may not be so in another.
22. In the present case, the accident is of 06.11.2013 and the learned Tribunal granted interest @ 9% per annum. The rate of interest does not warrant any interference. Conclusion:-
2. In view of above, the compensation is, therefore, re-calculated as under: -
1. Income of deceased Rs. 9,802/- Rs.9,802/-
2. Add-Future Prospects 50% 40%
3. Less- Personal Expenses of deceased 1/2 1/2
4. Loss of Dependency Rs.7,351.5/- Rs. 6,861.4/-
5. Annual Loss of Dependency Rs.88,218/- Rs. 82,336.8/-
6. Multiplier 17 17 (same) Total Loss Of Dependency Rs. 14,99,706/- Rs. 7,50,000/- (after deduction of 50% attributable to contributory negligence) Rs. 13,99,725.6/- Rs.6,99,862.8/- (after deduction of 50% attributable to contributory negligence)
9. Loss of Affection Rs. 1,00,000/- Rs.1,00,000/- (same)
10. Loss of Consortium Rs. 10,000/- Rs. 1,20,000/-
13.
23. The compensation amount is revised in the sum of Rs.9,45,000/along with interest @ 9% per annum, which shall be disbursed in terms of the Award dated 08.02.2016. The balance amount, if any, be deposited by the Appellant/Insurance Company within three months. Excess amount, if any, along with statutory amount be returned to the Insurance Company, in accordance with law.
24. Accordingly, the Appeal along pending Applications is disposed of in the aforesaid terms.
NEENA BANSAL KRISHNA, J DECEMBER 6, 2024