National Insurance Co Ltd v. Meenu Bhatiya & Ors

1. The Motor Accident Claims Tribunal-1 (Central), Delhi (hereinafter referred to as.theidfibimal{])j:^^^^ Award of 18^'^ October, 2016 has granted compensafi^tiB^S,59,496/- to respondents- Claimants on account of death of onQ Arvind Kumar @ Aravind Bhatiya, aged 31 years, in a vehicular acGidcnt, op;T*-Dec^ 2014. The facts, as noticed in impugned Award, are as under: - "In brief FIR No. 698/14 dated 08.12.2014 U/s 279/337/304A IPC was registered at Police Station: Ranjit ■ Nagar on statement ofinjured Ashok Kumar aged about 19 years. As per statement ofAshok Kumar on 07.12.2014 he along with Arvind Singh @ Arvind Bhatiya @ Aravind Bhatiya who was working with him in-Djelhi Academy of Medical Sciences Pvt. Ltd. were proceeding towards their MAC.APP. 56/2017 Page 1 of[6] 2018:DHC:9237 home after attending a marriage on motorcycle bearing registration No.DL 4SBX8514 which was driven by Arvind Singh. About 11:45PM on Patel Road, Metro Pillar NO. 255, Near Shadipur Flyover, the bike got unbalanced as it touched a car and in the meantime wasfurther hit by truck bearing registration No. HR-38U-0577 carrying JCB machine. Consequently, the motorcycle was dragged along with the truck, resulting infatal injuries to Arvind Singh, who was declared brought dead at Kalra Hospital and simple injuries to AshokKumar. "

2. The Tribunal on the basis of evidence led has held that Arvind Kumar @ Aravind Bhatiya had died in/a vehicular accident due to fash and negligent driving ofinsured truck by Gdvind Kumar. The Tribunal has assessed the income of deceased-.swho:was working as a Marketing Executive in a Private Company/ on the basis of attested copy of his Salary Summary Sheet and has concluded that the income was?18,331/per month. Addition of 50%:;towkfds has been made and after deducting 1/4^^ to%pds 'persbUdl^fxpenses' and by applying multiplier of 16,the 'loss offmancidVdependency'has been assessed at ^39,59,496/-. Underthe head of'non-pecuniary damages', compensation of?4 lacs in all has been gteht6dT:3;he br^^k-upibfcompensation granted by the Tribunal to the legal heirs oflate ArvindSingh@AravindBhatiya is as under:- Loss offinancialdependency r39,59,496/- Loss ofConsortium to Wife ri,50,000/- Loss oflove andaffection ri,50,000/- Loss ofEstate r50,0007- FuneralExpenses r50,000/- Total ^43,59,496/- MAC.APP.56/2017 Page2of[6]

3. Interest@9%per annum has been granted by the Tribunal on the awarded amount and the manner of disbursal of compensation is also indicated in impugned Award.

4. The challenge to impugned Award by learned counsel for appellant is on the ground that the incident in question had taken place due to negligence of the deceased and not of driver of the insured truck in question. In the alternative, it is submitted by learned counsel for appellant that otherwise also, there was contributory negligence of deceased. Another ground put forth by learned counsel:for appellant to assail impugned Award is that gross salary of deceased has been taken into consideration, whereas after excluding the Conveyance'Allowance and Education Allowance, the net monthly salary of deceased, i.e. ?16,621/-, ought to have been made the;!basis for assessing the 'loss of dependency'. Appellant's counselrsubmits that addition of40% towards f' utureprospects'oughtto have been niade^-as deceased was working on a fixed salary in a private concern.

5. Regarding deduction of 1/4^'^ towards 'personal expenses' of deceased, it is submittedE,y..fearned counsel,for appellant that the legal heirs ofdeceased are his wife,one rnarried daughter,one unmarried sister and parents and since father of deceased was an ex-serviceman and was getting pension, therefore, his wife and daughter were dependent upon father of deceased and not upon deceased and so, deduction of 1/3"!^ towards 'personal expenses' of deceased ought to have been made. Lastly,it is submitted by learned counsel for appellant that compensation granted under the 'non-pecuniary heads'deserves to be brought in tune \ MAC.APP.56/2017 Page3of[6] with the compensation granted under these heads by a constitution bench ofSupreme Courtin NationalInsurance Co.Ltd. Vs.PranaySethi& Ors. 2017see OnLine SC 1270.

6. On the other hand, learned counsel for respondents-Claimants supports impugned Award and submits that negligence was of truck driver and compensation has been rightly assessed bythe Tribunal and so, this appeal deserves dismissal.

7. Upon hearing and on perusal ofimpugned Award and the evidence on record,I find that myirQ^rAshok Kumar Sahu(PW-3)in his evidence has deposed that the motorcycle driven by:deceased had touched the rear side portion ofthe car plying ahead of,it,;;due to which the motorcycle of deceased became disbalanced..Howeve|,\'fe deposed that deceased had controlled the balance of motorcycle/ but it was hit by the truck which came on the road from behind;and;front portion of truck struck against the motorcycle, due.Toviwhichi; deceased fell down and had sustained fatal injuries.;

8. Upon scrutiny ofcross-examination:of Sahu(PW-3), I find that though the motorcycle of deceased had become disbalanced, but deceased had notfallenTite his motorcycle had touched the rear portion ofthe car and it was only when,the insured truck in question had hit the motorcycle that deceased had fallen down and sustained fatal injuries. In the face of evidence of Ashok Kumar Sahu (PW-3),I hold thatthe Tribunal has rightly concluded the truck driver to be negligentin causing ofaccidentin question.

9. Regarding the assessment of net income of deceased, I find that Supreme Courtin NationalInsurance CompanyLtd. v. Indira Srivastava MAC.APP.56/2017 4of[6] n & Ors., (2008)2 SCC 763, has declared that the gross income of the deceased has to be taken into consideration. So,I find that the Tribunal has rightly assessed the income ofdeceased on the basis ofgross income.

10. So far as addition of50% towards f' utureprospects'is concerned, I find that the evidence on record is lacking as regards deceased being in permanent employment.It has come in evidence ofPankajGael(PW-2), a witness from the Company where deceased was employed, that no employment letter was issued to deceased. Therefore, addition of 40% instead of50%towards f' utureprospects'hasto be made.

11. Regarding deduction of expenses' of deceased, I find that since the:amount of pension received by father of deceased is not forthcoming,!jtherefpre,V:d^ of 1/4"^ towards 'personal expenses' of deceased.ds;justifi^^ So far as 'non-pecuniary damages'are concerned,I fmd that ihwieA^;ofSupreme Court's decision in Pranay Sethi(supra),compehsattbn grapt^^^^ under the head of 'loss of consortium' is required feduciedf^^d.xis as such reduced from ?1,50,000/- to ?40,000/-. Similarly, thCiVcpmp granted under the head of 'loss of estate' is reduced from ?50,000/- to ^15,000/-. The f' uneralexpenses'are also'feduced:h:omv^:5^ to?15,000/-. Since no compensation underthe head of'love and affection'is payable in view of Supreme Court's decision in Pranay Sethi (supra), therefore, compensation of?1,50,000/- granted under this head is disallowed. The compensation granted under the head of 'loss offinancial dependency'is reassessed at ^36,95,520/- [i.e. f 2,19,972/- (annual income) + T 87,988/- (addition of40yo towardsfuture prospects)X16(multiplier)X 3/f^(dependency)]. MAC.APP.56/2017 Page5of[6]

12. The compensation payable to respondents-Claimants is reassessed as under:- Loss of financialdependency r36,95,520/- Loss ofConsortium to Wife r40,000/- Loss ofEstate ri[5],ooo/- FuneralExpenses ri[5],000/- Total r37,65,520/-

13. The reassessed compensation shall carry interest@9%per annum thereon and shall be disbursed in the manner as already indicated in the impugned Award. The excess: amount df compensation deposited by appellant be refunded alongwith the;statutory deposit. Thereafter, compensation in terms of thiS;judgment be released forthwith to respondents-Claimants. i:■

14. In view of aforesaidj;^^:^ stands modified accordingly. 3 'ft

15. The appeal and"the application^^ of.