Sanjeev Kumar & Another v. Hawa Singh & Others

1. whether the Reporters of local papers may be allowed. to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? yes INDERMEET KAUR. T. (Oral) I For order see MAC APPEAL No.17612011,. I I tr INDERMEET I(AUR, J. SEPTEMBER 1.4,?OLL a a 2011:DHC:15042 \4" * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment: 14'09'2011 + MAC APPeal No 176120L[1] TINKU & OTHERS..APPeIIants Through: Mr. Manish Maini, Advocate. Versus, HAWA SINGH & OTHERS..RESPONdENtS Through: Ms. Surnan Bagga, Advocate. AND I MAC Appeal No 178/?011 SANJEEV KUMAR & ANOTHER. '.Appellants Through: Mr. Manish,Maini, Advocate.

VERSUS

JUSTICE INDERMEET KAUR

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? ' Yes INDERMEET KAUR, T. (OTAI) L These are two appeals filed by the claimants of two victims. sanieev Kumar is the father of the victim sawan Kumar who was ( MAC Appeal No 176/2011 & 178/2011 Page I of[5] u J aged 5 years on the date of the accident. In this case, ihe Tribunal had awarded a sum of Rs.2,80,000/- as damages of which Rs.1-,25,000/- was caiculated as 'loss of dependency', Rs.5,000/- as funeral expenses, pecuniary damages to the.tune of Rs.75,000/and non pecuniary damages also to the tune of Rs.75,000/-. The Supreme Court in the case of R.,K. Malik and other Vs. Kiran Pal and others 2007 ACJ 2010 has considered the law with regard to compensation to be.awarded in a case of child victim; this has been followed by subsequently by a Bench of this Court in reported in II (2010) ACC 9 National Insurance Compan-v Ltd. Vs. Farzana; in this case the child victim was aged 7 years; a Bench of this Court relying upon the judgm.ent of R.K. Malik (Supra) had awarded a sum of Rs.75,000/- under the head of 'pain and sufferings' and another sum of Rs.75,000 l- for 'loss of future prospects'; this sum of Rs.1,50,000/- was awarded under the head of 'non-pecuniary damages'; income of the child in view of the judgment of R.K. MaLik (Supra) was taken at Rs.i-5,000/- per annum which figure was arrived at after taking guidance from the IInd Schedule of Section L63-A of the Motor Vehicle Act; to this the multiplier of 15 was applied; Rs.2,25,000/- would be the amount under the pecuniary head and thus complied with the sum of Rs.1,50,000/- awarded under the head of 'non-pecuniary q MAC Appeal No 176/201L & L78l20ll Page 2 of[5] I /damages totaling a sum of Rs.3,75,000/-. The Award requires modification on this count. The impugned Award not following this principle has committed an error; the impugned Award is accordingly modified and the'claimants of the child victim are accordingly entitled to Rs.3,75,000/- which is inclusive of the interim award of Rs.50,000/- already paid; this amount shall carry an interest @ 7.5% per annum from the date of filing of the petition till realization.

2 The second part of the Award relates to the claim filed by the legal representatives of deceased Sheela. As per the deposition on oath and in terms of the affidavit filed by the petitioner, deceased Sheela was earning Rs.9,000/- per month; the submission of learned counsel for the appellant that in terms of the salary certificate produced by PW-3 her salary income was evidenced at Rs.18,269/- is clearly beyond the pleading; the petitioner who ip the son of the victim being in the.best know how 1l of the salary of his mother has categorically deposed that she was drawing the salary of Rs.9,000/- per month. In this view of the matter, the Tribunal had correctly appreciated that the salary of the victim was Rs.9,000/- per month. The victim had two married sons and two married daughters. The Court had noted that in the ciaim petition as also the affidavit by way of evidence filed by the MAC Appeal No 176/2011" & l78l2}l[1] r i /-^ witness of the claimants, there was not a whisper anywhere in either that they were financially dependent upon their deceased mother Sheela. The class of legal representatives is distinct from the class which is financially dependent upon the deceased. The definition of a 'legal represenl:ative' as a claimant under the I'f.V. Act has been noted by the Apex Court in I (1987) ACC 475 Gu-iarat State Eoad Transport Corporatian, Ahntedabad Vs. Ramanbhai ?rabnatani * anotner The Apex court had noted that expression 'legal represenLative' has not beet'r defined anyrhere in l"he Motor Vehicie Act; this definitjon finds mention'under Sectjou 2 (11) of ihe Cocle of Civil Procerl.u.re; i.e. a person who represents l;lie estate of the deceaseC; a clue had alsc beerr taken fi'orn th.e proviso to Sub-section (1) of Section 110-A of the Motor Vehicle Act rvhich expresslir sia.tes (i) ttrat an apph.cabion for compensation may be macle Fy tfre legal representatives of the deceased or their agent and (ji) tirat such a.n a.pplication shall be made on behalf of or for the benefit of ai} 1,hs jg:gai represeiltatives. In this cese, the Apex Court had notecl tha.t,a clairn petition even by the brothers of the deceased was rnaintaillahie. In Ir{AC Appeal No 28B|20IL titled Smt. Shakuntal & Obhers VS. Str. Naresh Kumar & others cl.ecided onl-6.05.201-1, a Bench of this Court had noted thal tn'o ma.r'ried. cl.aughters of the victim \nrere not stticto 'senso dependent lv{AC Appeal No 176/201 I & l7E!20n Pagt'4 of'5 a I, upon the deceased; however they are a part of the family and they may benefit from the gifts and cash amounts which may be given to them by their deceased parents. These factors have been correctly construed and noted by the Tribunal; since the two sons and two married daughters had neither averred in the ciaim petition and nor deposed on oath that they were financially dependent upon their deceased mother; their financial dependency was rightly not taken into account; however a iump sum compensation of Rs.[2] lacs was awarded to them under the non-pecuniary head i.e. for 'loss of love and affection' and another sum of Rs.[2] lacs for 'Ioss of estate'. These amounts of Rs.[4] lacs would even otherwise off set and wouLd balance the amounL not awarded for 'ioss of dependency'. A separate amount of Rs.l0,000/- has also been awarded for funeral expenses. The findings in this part of the Award merits no interference.

3 Both the appeals are disposed of in the u$orr" terms. I | --' tr_z INDERMEET KAUR, J. SEPTEMBER L[4],2O[1].L a lt MAC Appeal No 176/201L &L781201.r Page 5 ofS