MAC.APP./591/2010 of NEW INDIA ASSURANCE CO LTD Vs NASIMA KHATOON & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 21[st] February, 2012 Pronounced on: 12[th] March, 2012

+ MAC. APP. No.591/2010

NEW INDIA ASSURANCE CO. LTD. ..... Appellant Through: Mr. K.L. Nandwani, Advocate

Versus

NASIMA KHATOON & ORS

.... Respondents Through: Mr. Bharat Sharma, Advocate for the Respondents No.1 to 3

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

G. P. MITTAL, J.

J U M N T

1.The Appellant New India Assurance Co. Ltd. seeks reduction of compensation of `6,26,000/- awarded for the death of Sajlul Rehman who died in an accident which took place on 05.01.2008. compensation of `6,26,000/- awarded for the death of Sajlul Rehman who died in an accident which took place on 05.01.2008.

2.The Claims tribunal by the impugned order took the deceased’s income to be `4,000/-, deducted 1/5[th] towards his personal and living expenses, adopted the multiplier of 15 suitable to the deceased’s age, added sum of `10,000/- each towards funeral expenses and loss of consortium, `30,000/- towards loss of income to be `4,000/-, deducted 1/5[th] towards his personal and living expenses, adopted the multiplier of 15 suitable to the deceased’s age, added sum of `10,000/- each towards funeral expenses and loss of consortium, `30,000/- towards loss of

love and affection to compute an overall compensation of `6,26,000/-.

3.The following conditions are raised on behalf of the Appellant:

i)There should have been deduction of 1/4[th] towards the personal and living expenses instead of 1/5[th] as made by the Claims Tribunal as the number of dependents were four. the personal and living expenses instead of 1/5[th] as made by the Claims Tribunal as the number of dependents were four.

ii)The deceased was gratuitous passenger and thus the Insurance Company had no liability to pay, or in the alternative, if the deceased is presumed to be an employee of Gateway Rail Freight Ltd., the Sixth Respondent and owner of the offending truck, the compensation ought to have been awarded in favour of the Respondents No.1 to 4 on the scale under the Workmen’s Compensation Act and not under the Motor Vehicles Act. the Insurance Company had no liability to pay, or in the alternative, if the deceased is presumed to be an employee of Gateway Rail Freight Ltd., the Sixth Respondent and owner of the offending truck, the compensation ought to have been awarded in favour of the Respondents No.1 to 4 on the scale under the Workmen’s Compensation Act and not under the Motor Vehicles Act.

4.The Supreme Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, suggested the deduction of 1/4[th] of the deceased’s income towards his personal and living expenses where the number of dependents is 4 to 6, 1/5[th] deduction was provided where the number of dependents was more than 6. Since in this case, number of dependents were four, the Claims Tribunal erred in deducting Corporation & Anr., (2009) 6 SCC 121, suggested the deduction of 1/4[th] of the deceased’s income towards his personal and living expenses where the number of dependents is 4 to 6, 1/5[th] deduction was provided where the number of dependents was more than 6. Since in this case, number of dependents were four, the Claims Tribunal erred in deducting

MAC APP. No.591/2010

1/5[th] towards his personal and living expenses. I agree with this contention raised on behalf of the Appellant.

5.As far as plea of gratuitous passenger is concerned, it would be important to have look at the pleadings of the parties. In para 5 of the Claims Petition, it was stated that the deceased was an employee of Gateway Rail Freight Ltd., Inland Container, Shri Maruti Nagar, Gurgaon. It is mentioned that he was working as driver. In para 24 of the Petition, it was stated that on 05.01.2008, the deceased was travelling in the offending vehicle after finishing his duty with the Sixth Respondent (i.e. the owner of the vehicle). The offending vehicle No. HR-55G-1862 was being driven at high speed in rash and negligent manner by the Fifth Respondent. On account of sudden jerk, the deceased fell down from the window of the offending vehicle. Para 1 to 7 of the Claim Petition were not denied by the Fifth Respondent (Respondent No.1 before the Claims Tribunal) who was the driver of the offending vehicle. The manner of the accident was also not traversed, although the Fifth Respondent took the plea that the accident was caused on account of the deceased’s own negligence. important to have look at the pleadings of the parties. In para 5 of the Claims Petition, it was stated that the deceased was an employee of Gateway Rail Freight Ltd., Inland Container, Shri Maruti Nagar, Gurgaon. It is mentioned that he was working as driver. In para 24 of the Petition, it was stated that on 05.01.2008, the deceased was travelling in the offending vehicle after finishing his duty with the Sixth Respondent (i.e. the owner of the vehicle). The offending vehicle No. HR-55G-1862 was being driven at high speed in rash and negligent manner by the Fifth Respondent. On account of sudden jerk, the deceased fell down from the window of the offending vehicle. Para 1 to 7 of the Claim Petition were not denied by the Fifth Respondent (Respondent No.1 before the Claims Tribunal) who was the driver of the offending vehicle. The manner of the accident was also not traversed, although the Fifth Respondent took the plea that the accident was caused on account of the deceased’s own negligence.

6.The Appellant Insurance Company also did not traverse para 1 to 9 of the Claim Petition. In para 24, it took the plea that since the deceased was travelling in goods carrying commercial vehicle, only the insured was liable to pay the compensation to the Petitioner. It is important to note that the averments that to 9 of the Claim Petition. In para 24, it took the plea that since the deceased was travelling in goods carrying commercial vehicle, only the insured was liable to pay the compensation to the Petitioner. It is important to note that the averments that

MAC APP. No.591/2010

the deceased was working as driver on this very truck (Trolly) and was an employee of the Sixth Respondent was not denied. Thus, the plea of gratuitous passenger could not have been taken by the Appellant.

7.The alternative plea of the Appellant that the Respondents No.1 to 4 were entitled to be paid the compensation payable under the Workmen’s Compensation Act has been taken for the first time only in the grounds of Appeal. In “an act only” policy, the insurer is liable to pay the compensation only under the Workmen’s Compensation Act even if the victim or his legal representatives approach the Claims Tribunal under section 166 of the Motor Vehicles Act. In this case, neither any such plea was taken in the written statement nor the insurance policy, though available on the Trial Court record, was proved by the Appellant. In the circumstances, the Appellant now cannot be permitted to contend that it was only an “act only” policy and its liability was limited payable only under the Workmen’s Compensation Act. to 4 were entitled to be paid the compensation payable under the Workmen’s Compensation Act has been taken for the first time only in the grounds of Appeal. In “an act only” policy, the insurer is liable to pay the compensation only under the Workmen’s Compensation Act even if the victim or his legal representatives approach the Claims Tribunal under section 166 of the Motor Vehicles Act. In this case, neither any such plea was taken in the written statement nor the insurance policy, though available on the Trial Court record, was proved by the Appellant. In the circumstances, the Appellant now cannot be permitted to contend that it was only an “act only” policy and its liability was limited payable only under the Workmen’s Compensation Act.

The Claims Tribunal did not grant any compensation to Respondents No.1 to 4 for the loss to estate although it granted compensation of `30,000/- towards loss of love and affection. Since, normally compensation of `25,000/- is granted towards love and affection (Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627), I would treat Respondents No.1 to 4 for the loss to estate although it granted compensation of `30,000/- towards loss of love and affection. Since, normally compensation of `25,000/- is granted towards love and affection (Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627), I would treat

the compensation of `25,000/- towards loss of love and affection and `5,000/- towards loss to estate.

9.The loss of dependency is reassessed on deduction of 1/4[th]towards personal and living expenses which comes to `5,40,000/-(`4,000 X 12 X 3/4 X 15). towards personal and living expenses which comes to `5,40,000/-(`4,000 X 12 X 3/4 X 15).

10.The overall compensation is re-computed as under:

11.In the circumstances, total compensation payable comes to `5,90,000/-. The Claims Tribunal awarded compensation of `6,26,000/- which, in the circumstances of the case, cannot be said to be excessive and exorbitant, particularly when the Claims Tribunal took the salary of the deceased as driver of the truck only `4,000/-. `5,90,000/-. The Claims Tribunal awarded compensation of `6,26,000/- which, in the circumstances of the case, cannot be said to be excessive and exorbitant, particularly when the Claims Tribunal took the salary of the deceased as driver of the truck only `4,000/-.

12.I would not like to interfere with the award of compensation of `6,26,000/-. The Appeal is accordingly dismissed. `6,26,000/-. The Appeal is accordingly dismissed.

13.The compensation shall be disbursed in favour of the Respondents Claimants in the manner as directed by the Claims Tribunal. Respondents Claimants in the manner as directed by the Claims Tribunal.

14.The statutory amount of `25,000/- shall be released to the Appellant. Appellant.

15.No costs.

MARCH 12, 2012 pst

(G.P. MITTAL) JUDGE

MAC APP. No.591/2010