Som Nath Sharma v. Naiesh Kumar

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

3. Whether thg judgment should be reported in the Digest? Yes CM NO. L855/2OLL (Delav) For the reasons stated in the application, the delay in filing { the appeal is condoned.,J Application is condoned. For order see MAC APPEAL No.B/20LL.

AUGUST L[2],2OTTIA INDERMEET KAUR, J. fu,,;^R-1l- sa8?'r t49'r crqtHryu 2011:DHC:15327, '1, ( | L3- ff-. *, *. ) '-L.--- IN T,I{E HIGIT {JC}URT OF DELI{I AT NEW DELI{I Jud"gment reserued' ort: 70'08'2011 Jud'gment d'eliuered' on: 7 2' 08'20 1 1 MAC APPEAL No'B/2O11 hp?ct \ E(:59 o/o + NEW

VERSUS

VERSUS

NAF.ESH KUMAR & OTHERS Through:...APPellant lriandwani, Advocate Respondents Mr.Sanjeev Mehta, Advocate for the claimants. Mr. Harish GuPta, Advocate for resPondent No. 4. Mr s anj ee" *.nf",Tf.iilTf..ResPondents Mr.K.L. Nandwani, Advocate for the Insurance companv INDIA ASSURANCE CO. LTD. Through: Mr.K'L.,[1] L,.[1] | -r,) ) I CORAM: HON'FLE MS.

JIJSTICE INDERMEET K,A'UR

2. To be referred to the Reporter or not?

3. Whether the judgnient should be reported in the MAC APPEAI, Nos.U/2011 & 83/2011 Yes Digest? Yes Page l'ol'6 f rt.ph VCE 23:5 ].ThesearetwoappealswhichhavearisenoutoftheAward datedl+.0g.201'0whereincompensationinthesumof{3,57,000/along with interest @ 7 '5% per annum trad been awarded in favour of the claimants from [he d,ate of filing of the petition tili ' realization. 2Tbefirstappeali.e.MACAPPEALNo.8/201]"hasbeenfiled by the Insurance company. Admittedly permission under section 170 of the Motor Vehicle Act (MVA) has not been taken by the InstrranceCompanybeforefilingthisappeal.Thecontentionof theappellant/InsuranceCompanyisthatnosuch.permissionis resuire[4]. The grounds of appeal as is evid"uttt fto* the body of the appeal is that vehicle in question i.e. Qualis was not involved in the accident; contention is that this has not bden correctly appreciated by the Tribundl; the amount awarded is exorbitant; it is on the higtrel' side; only a just and.fair compensation' was to be ar,vardecl; clalmnts. could not have been enriched; Award has accordingly been challengecl on the aforenoted grounds' In the bocly of the appeal itself, it has been stated that permission under Section 170 of the MVA is not required' i[3] Learned counsel for the non-applicants/claimants MAC APPEAL Nos.8/201i & 83/2011,u, /ed 't L tll '{) I,r ( submits l'age 2 oi'6 INDERMEET KAUR,,[1] c lL3-{f--":'o that appeal of the appellant is hot maintainable in view of mandatory permission which is required under section L70 of the MVA.

4 Und.er Section 1.70 of the MVA, the insurer has no right to file an appeal on grounds other than those availabie to it under Section I4g (2) of the MVA' Section 1'49(2) of the MVA is a provision elgraftect to ensure that the victims of filotor vehicle accidents are compensated and protected; Insurance company cannot escape from its liabiiity to pay compensation on any exclusionary clause in the insurance policy except those cond"itions which are specified under Section t49 (2) of the MVA; only those d.efences wirich are c6vered under Section 149 (2) are available to the insurer. In the instant case as is evident from the body cf the appeal the claim of compensation has 'lreen i challenged; this could not harre been permissible unless permission under Section L70 of ihe MVA had been obtained' In the absence of t[is procedlre having been fol]owed, the appeal filed by the Insurance Company is not maintainable' This Court is fortified in this view in view of judgment delivered by another Bench of tiris court in MAC APPEAL No. 560/2000[6] dated 5O/A.--r,r.n r r.ct.php?clr \\ E'VCE l, tlc It )t It I Ql I q, cx* 4-- -'tr A tr[3], roved 0,., t /o OV n zl,L /1 I lv I l,tl re qt l, I i I: I \ur /r I 28.03.2008 in the case of Ashoka Deui and Others. The appeal of the MAC APPEAL Nos.8/201L & 83/2011 Insurance ComPanY is Pagc 3 ol'6 l I ii i_' I I hr:;ri-, Iiable to be dismissed on this ground". It is accord'irrgly dismissed' 5Thesecondappeali.e'MACAPPEALNo.83/201"1.isan appeai filed by the claimants seeking enhancemenL of compensation. The conpensation awarded as noted supra is in the ' sum of {3,57,000/- along with interest @ 7 5% per annum' The claimants are the parents of the victim I(unal @ sonu' The deceased was coming on a motor cycle along *i;;j irro purro* when he was hit by Quaiis No.DL-6CG-660L which had been driverr in rash anci negligent manner; Qualis had fled away from the scene; one eye witness Bhagat Singh had been examined' It was not refuted that the Qualis was insured with the Insurance company; contention of tire Insurance comp^qny r,vas that this vehicle was not involved in the accident; however, since the appeal filed by the Insurance company has been dism-issed, this Court need not examine or deal with this argument' 6 The claimants have assailed the compensation on the ground, that the multiplier of L[3] has been applied when as per the structured formula contained in the second Schedule of the MVA which is applicable to a claim petition under Section L63-A of the MVA, the multiplier of 17 should- have been applied. f'his submission of learned counsel for the appeilant is borne out' The AC APPEAL Nos.8/2011 & 83/2011 g de ficr.ph R4'\fCE 1.1;23:5 tl -lo[7] moved -l, /l 'l/. TTIfi Jre Int cl-u, L )ut) / t l I fr ql I q oa- 7r*- -4 tf victim was aged 23 years on the date of incident; age of victim was reievant to appty the multiplier in the case of a claim under Section 163-A of the MVA. The multiplier from L[3] is accordingly modified to 1.7.

7 The. next contention of learned counsel for the appellant is that although the minimum wages of the victirn.had been taken into account at {3,300/- per month yet the benefit of price index rise and cost of inflation had not been taken into account. Reliance has been placed upon the judgments reported in 2008 ACJ 2tB[2] (Delhi). Kanwar Deui Vs. BansaL Roadwa-vs, 2OO[7] ACJ'2165 (Dellri) Lekhra_i Vs. Sitram Sin[rh.and 2009 ACJ 1921 (Delhi) Nationa] Insurance Co. Ltd. I,rs. Renu Devi to substJntiate the submission that 50% increase has to be considered as price rise and judicial notice of the fact shouid be taken into account that minimum wages are iikely to be doubled in the next L0 years. This' submission has been countered.by learned counsel for the Insurance company who states that price rise and cost of ind,ex int\ation canrnot be consid.ered. in a c\airn petltion und.er Section L63-A of the MVA. B To counter this submission learned counsel for the claimants has placed reiiance upon a judgment of the coordinate Bench of this Court reported in 2009 (3) T.A.C. 1"20 (DeI.) Npv-hdic. '59./htnr l/c v t71 su. s u/ --l p Q na iist t- -> ^( -J cc.-;(\ - - MAC APPEAL Nos.B/20L[1] & 83/2011,. Page 5 of[6] l)- )o-,-, --: 3, dlJ?;Ya Assurance Co. Ltd. Vs. Mohd. -Iabir & others where also fut 'e prospects were taken into account and the income of the deceased was doubled,; this was also in a claim petition under Section 163-A of the MVA. The rider which has to be kept in mind is that the income calculated by the Tribunal should not exceed {40,000/- per annum which is a pre-requisite 'for the applicability of the provisions under Section 1.63-A of the MVA. I Both these contentions of learned counsel for the claimants have force. The benefit of price rise index and.cost of inflation has ' -Y[2] Lo be given to the victi.rri. The compensation thus assessed would read as under:- Salary of the deceased t[3],300/- Adding future prospects (50%) {1,650/- (4,950/- Deducting 1/3rd personal expenses tX,650/: <3.300/-X12X[1] 7 = <6,73,2001- 10 The amount awarded under the. heacl of funerai expenses, loss of estate and hospitalization & treatrrr"ri,.*o"rrses cails for no interference. 'l

11 Qoth the appeals are disposed of in the Above terms. P/ /-- INDERMEET KAUR, J. AUGUST L[2],2O[1].L a r-c"l-r., ? l*,. Il -oL (.,, $ '|fl lel- I MAC APPEAL Nos.B/2011 & 83/2011 Ty'* 6W q"-k;c[6],rr.[6]