MAC.APP./323/2011 of NATIONAL INSURANCE CO LTD Vs AASMA PRAVEEN & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision:7[th] May, 2012

+ MAC. APP. No.323/2011

NATIONAL INSURANCE CO. LTD. ..... Appellant Through: Mr.D.K. Sharma, Advocate

Versus

AASMA PRAVEEN & ORS. Through: None

..... Respondents

CORAM: HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

1.The Appeal is for reduction of compensation of `5,20,000/- awarded in petition under Section 163-A for the death of Hidayat Khan, who expired in an accident arising out of the use of the motor vehicle i.e. maruti van bearing registration No.DL-5CC 5540. awarded in petition under Section 163-A for the death of Hidayat Khan, who expired in an accident arising out of the use of the motor vehicle i.e. maruti van bearing registration No.DL-5CC 5540.

2.There is twin challenge to the compensation awarded. It is urged that the deceased was working as driver of maruti van with the owner. The salary of skilled worker on the date of the accident was `2,948/-. Thus, the deceased’s income ought urged that the deceased was working as driver of maruti van with the owner. The salary of skilled worker on the date of the accident was `2,948/-. Thus, the deceased’s income ought

to have been taken as `3,000/- per month i.e. `36,000/- per annum instead of `40,000/- per annum taken by the Claims Tribunal. It is contended that the award of non-pecuniary damages to the tune of `40,000/- is not in consonance with the Second Schedule which prescribes sum of `9,500/- in all towards non-pecuniary damages in case of the death of married person.

3.There is no dispute about the proposition of law. It is well settled that in Claim Petition under Section 163-A of the Act, the compensation has to be awarded as per the structured formula given in the Second Schedule appended to the Motor Vehicles Act. This Court in New India Assurance Co. Ltd. v. Pitamber & Ors.,MAC APP. No.304/2009 decided on 23.01.2012 noticed the divergence of opinion in the judgment of this Court in Oriental Insurance Company Limited v. Smt. Pataso & Ors., MAC APP.962/2005 decided on 01.09.2008;Oriental Insurance Company Limited v. Om Prakash & Ors., 1 (2009) ACC 148; Jagdish & Anr. v. Madhav Raj Mishra and Anr. MAC APP.190/2011 decided on 19.04.2011; and Oriental Insurance Company Limited v. Anita Devi & Ors., 2011 (5) AD (Delhi) 138, and relying on the Supreme Court judgments in Oriental Insurance Company v. Hansrajbhai v. Kodala, (2001) 5 SCC 175; Deepal Girishbhai Soni v. United India Insurance Company Limited, (2004) 5 SCC 385; and Oriental Insurance Company Limited v. Meena Variyal (2007) 5 SCC 428 held that

the judgment of this Court in Anita Devi & Ors. (supra) is in consistence with the law laid down in Kodala and Deepal Girishbhai Soni(supra) and that the compensation under Section 163-A can be awarded only on the basis of the structured formula.

4.Although, the minimum wages of skilled worker on the date of the accident was about `3,000/-, since it was established before the Claims Tribunal that the deceased was working as driver with the owner of maruti van, therefore his income could have been assumed to be `40,000/- per annum or about `3,300/- per month. There is no fault in awarding compensation of `4,80,000/- towards the loss of dependency. The Second Schedule provides for compensation of `5,000/- towards loss of consortium, `2,500/- towards loss to estate and `2,000/- towards funeral expenses. Thus, the Claimants were entitled to sum of `9,500/- only towards the non-pecuniary damages. of the accident was about `3,000/-, since it was established before the Claims Tribunal that the deceased was working as driver with the owner of maruti van, therefore his income could have been assumed to be `40,000/- per annum or about `3,300/- per month. There is no fault in awarding compensation of `4,80,000/- towards the loss of dependency. The Second Schedule provides for compensation of `5,000/- towards loss of consortium, `2,500/- towards loss to estate and `2,000/- towards funeral expenses. Thus, the Claimants were entitled to sum of `9,500/- only towards the non-pecuniary damages.

5.The compensation, therefore, stands reduced from `5,20,000/- to `4,89,500/-. to `4,89,500/-.

6.The Appellant Insurance Company shall be entitled to refund of excess amount of `30,500/- along with the proportionate interest and the interest earned during the pendency of the Appeal. excess amount of `30,500/- along with the proportionate interest and the interest earned during the pendency of the Appeal.

7.The compensation of `4,89,500/- along with interest @ 8% per annum as awarded by the Claims Tribunal and the interest accrued during the pendency of the Appeal, if any, on this annum as awarded by the Claims Tribunal and the interest accrued during the pendency of the Appeal, if any, on this

amount shall be disbursed to the Respondents No.1 to 4 in terms of the order passed by the Claims Tribunal.

8.The Appeal is allowed in above terms.

9.The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company. Appellant Insurance Company.

MAY 07, 2012 pst

(G.P. MITTAL) JUDGE