Full Text
Date of Decision: March 21, 2018
NATIONAL INSURANCE COMPANY LIMITED ..... Appellant
Through: Mr.L.K.Tyagi, Advocate
Through: Mr.Syed Hasan Isfahani and Mr.Vikas Yadav, Advocates
NATIONAL INSURANCE COMPANY LIMITED ..... Appellant
Through: Mr.L.K.Tyagi, Advocate
Through: Mr.Syed Hasan Isfahani and Mr.Vikas Yadav, Advocates
JUDGMENT
1. The above captioned two appeals are directed against Award of 31st March, 2015 whereby two claim petitions arising out of one vehicular 2018:DHC:1978 Mac.A.Nos.508/2015 & 511/2015 Page 2 accident which took place on 16th July, 2007, have been decided. With consent of learned counsel for the parties, both these appeals have been heard together and are being decided by this common judgment. The facts as noted in the impugned Award needs no reproduction. Suffice to note that Ramendera Singh aged 45 years and Ramesh Chandera aged 49 years (both Government employees) had died in a vehicular accident on 16th July, 2007.
2. In the case of Late Ramendera Singh, Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) has assessed the loss of dependency while applying multiplier of 14 and adding 50% towards future prospects and after deducting 1/4th towards personal expenses. The breakup of the compensation granted to the legal heirs of Late Ramendera Singh is as under:- S.No. Head Amount
1. Loss of dependency (Rs.18019/-x12x14) Rs.30,27,192/-
2. Loss of love and affection to children Rs.1,00,000/-x[4] = Rs.4,00,000/-
3. Loss of love and affection towards Parent Rs.50,000/-
4. For funeral expenses Rs.25,000/-
5. Loss of estate Rs.1,00,000/-
6. Loss of consortium Rs.1,00,000/- TOTAL Rs.37,02,192/-
3. Whereas in the case of Late Ramesh Chandera, multiplier of 13 has been applied and addition of 50% towards future prospects has been made. 1/3rd deduction towards personal expenses has been also made. The breakup of compensation granted to the legal heirs of Late Ramesh Chandera is as Mac.A.Nos.508/2015 & 511/2015 Page 3 under:- (Rs.15,578/-x12x13) Rs.24,30,168/-
2. Loss of love and affection to children Rs.1,00,000/-x[2] = Rs.2,00,000/-
3. Funeral expenses Rs.25,000/-
4. Loss of estate Rs.1,00,000/-
5. Loss of consortium Rs.1,00,000/- TOTAL Rs.28,55,168/-
4. The Tribunal has directed that the aforesaid compensation shall carry interest @ 9% per annum and the manner in which it has to be apportioned inter se the legal heirs of both the deceased has been also spelt out in the impugned Award.
5. The challenge to the impugned Award by learned counsel for appellant is on the ground that the cheque issued by the owner of the vehicle in question towards the premium for the insurance policy had bounced and so appellant is not liable to pay the awarded amount and so, recovery rights are sought against respondent-owner of the vehicle in question. Learned counsel for appellant submits that the quantum of compensation granted is on higher side and in view of Constitution Bench decision of Supreme Court in National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. 2017 SCC OnLine SC 1270 compensation granted deserves to be suitably reduced.
6. As per order of 3rd August, 2016, the legal heirs of the driver and owner of the vehicle in question have been served and they have been proceeded ex-parte. Learned counsel for respondent-claimants submits that Mac.A.Nos.508/2015 & 511/2015 Page 4 though the liability to pay compensation may be of the owner and driver of vehicle in question but appellant ought to first pay the compensation awarded and thereafter, recover from owner and driver of the vehicle in question. Regarding the quantum of compensation awarded by the Tribunal, it is submitted by learned counsel for respondent-claimants that the compensation awarded is adequate and no case for its reduction is made out. Nothing else is urged by either side.
7. Upon hearing and on perusal of the impugned Award, evidence on record and the decision cited, I find that in view of the unrebutted testimony of appellant’s witness R-3W[1], the Tribunal has erroneously put the burden on appellant to pay the compensation since the cheque issued by the owner of the vehicle in question towards the premium amount had bounced and the insurance cover was withdrawn by the appellant on account of the nonpayment of insurance premium and therefore, liability to pay the compensation is of the owner of the vehicle in question and not of the appellant. In light of the aforesaid, appellant is granted recovery rights qua the owner of vehicle in question.
8. So far as addition of 50% towards future prospects is concerned, I find that the Tribunal has erred in making addition of 50% towards future prospects. Since the deceased were aged 45 and 49 years on the day of the accident, so in view of Supreme Court’s decision in Pranay Sethi (supra), addition of 30% is to be made towards future prospects.
9. In view of the Constitution Bench decision of Supreme Court in Pranay Sethi (supra), the compensation granted on account of ‘loss of Mac.A.Nos.508/2015 & 511/2015 Page 5 dependency’ and under the non-pecuniary heads deserves to be modified. In face of the dictum of Supreme Court in Pranay Sethi (supra), compensation granted under the head of ‘loss of love and affection’ is disallowed and thereafter the compensation payable to the legal heirs of Late Ramendera Singh is re-assessed as under:- (Rs.16017/-x12x14x130/100x3/4) `26,23,584/-
2. Funeral Expenses `15,000/-
5. Loss of Estate `15,000/-
6. Loss of Consortium `40,000/- TOTAL `26,93,584/-
10. The compensation payable to legal heirs of Late Ramesh Chandera is re-assessed as under:- (Rs.15578x12x13x2/3x130/100) `21,06,145/-
2. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
5. Loss of Consortium `40,000/- TOTAL `21,76,145/-
11. The impugned Award is modified in the aforesaid terms. The compensation granted to legal heirs of Late Ramendera Singh is reduced from `37,02,192/- to `26,93,584/- which shall carry the interest @ 9% per annum and compensation granted to legal heirs of Late Ramesh Chandera is reduced from `28,55,168/- to `21,76,145/- which shall carry the interest @ Mac.A.Nos.508/2015 & 511/2015 Page 6 9% per annum. Appellant to deposit compensation in terms of this judgment within four weeks and thereafter it be released to the respondent-claimants forthwith by appellant. Recovery rights are granted to appellant qua the owner and driver of the vehicle in question. Statutory deposit and excess deposit, if any, be refunded as per rules.
12. With aforesaid directions, these two appeals and application are disposed of.
JUDGE MARCH 21, 2018 mamta