MAC.APP./256/2011 of BAJAJ ALLIANZ GENERAL INSURANCE CO LTD Vs PYARE LAL & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAC.APP. 256/2011

Date of decision: 13[th] February, 2012

BAJAJ ALLIANZ GENERAL INS. CO. LTD...... Appellant Through: Ms. Priyadarshin Gopal, Advocate Mr.Rajat Brar Advocate, Mr. Anvit Jain Advocate for Ms. Rameeza Hakeem, Advocate. Through: Ms. Priyadarshin Gopal, Advocate Mr.Rajat Brar Advocate, Mr. Anvit Jain Advocate for Ms. Rameeza Hakeem, Advocate.

versus

PYARE LAL & ORS. ..... Respondents

Through: Mr. Naveen Kumar Goyal, Advocate for R-1 and R-2. Advocate for R-1 and R-2.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

CM APPL.5746/2011 (leave to Appeal)

1.This Appeal is against the award dated 10.11.2010. Although the Appellant was party before the Claims Tribunal and was directed to satisfy the award, its name was not mentioned in the case title. The Appellant is permitted to file the Appeal. the Appellant was party before the Claims Tribunal and was directed to satisfy the award, its name was not mentioned in the case title. The Appellant is permitted to file the Appeal.

2.Application stands disposed of.

CM APPL.5748/2011 (delay)

3.There is delay of 34 days in filing the Appeal. For the reasons

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stated in the application, the same is allowed. Delay of 34 days in filing the Appeal is condoned.

4.The application stands disposed of.

CM APPL.5745/2011 (stay)

5.The entire award amount except sum of Rs.75,000/- was ordered to be released to the Respondents/claimants. The appeal has come up for hearing for final disposal. The order dated 21.03.2011 is made absolute. ordered to be released to the Respondents/claimants. The appeal has come up for hearing for final disposal. The order dated 21.03.2011 is made absolute.

6.The application stands disposed of.

MAC.APP. 256/2011

7.The Appellant seek reduction of compensation of ` 3,75,000/- awarded for the death of Naresh Kumar, minor son of the Respondents No.1 and 2, who was aged about 12 years at the time of the accident and was student of 6[th] standard. awarded for the death of Naresh Kumar, minor son of the Respondents No.1 and 2, who was aged about 12 years at the time of the accident and was student of 6[th] standard.

8.The Motor Accident Claims Tribunal (the Claims Tribunal) granted compensation of ` 2,25,000/- on account of loss of dependency by taking notional income of `15,000/- per annum and applied the multiplier of 15. The Claims Tribunal further awarded sum of `75,000/- towards loss of love and affection and `75,000/- towards future prospects. granted compensation of ` 2,25,000/- on account of loss of dependency by taking notional income of `15,000/- per annum and applied the multiplier of 15. The Claims Tribunal further awarded sum of `75,000/- towards loss of love and affection and `75,000/- towards future prospects.

9.It is urged by the learned counsel for the Appellant that Bajaj Allianz General Insurance Company Limited had given an offer Allianz General Insurance Company Limited had given an offer

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of `2,50,000/- which was just and reasonable compensation in case of death of minor. Learned counsel for the Appellant relied on New India Assurance Company Limited v. Satender & Ors., (2006) 13 SCC 60 wherea compensation of `1,80,000/- was awarded on the basis of judgment in State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484 and Kaushlya Devi v. Karan Arora & Ors., (2007) 11 SCC 120 where in case ofdeath of child aged about 14 years compensation of ` 1,00,000/- awarded by the Claims Tribunal was approved by the High court. The SLP preferred by the deceased’s mother was dismissed.

This case is covered by the judgment of this Court in National Insurance Company Limited v. Farzana & Ors., 2009 ACJ 2763, where number of judgments of the Supreme Court were considered. I extract para 4 to 8 of the judgment as under:- Insurance Company Limited v. Farzana & Ors., 2009 ACJ 2763, where number of judgments of the Supreme Court were considered. I extract para 4 to 8 of the judgment as under:-

“4. In the case of Manju Devi Vs. Musafir Paswan, VII (2005) SLT 257, the Hon’ble Supreme Courtawarded compensation of Rs.2,25,000/- in respect of death of 13-years old boy by applying the multiplier of 15 and taking the notional income of Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act. The relevant portion of the said judgment is reproduced hereunder:- VII (2005) SLT 257, the Hon’ble Supreme Courtawarded compensation of Rs.2,25,000/- in respect of death of 13-years old boy by applying the multiplier of 15 and taking the notional income of Rs.15,000/- as per the Second Schedule of the Motor Vehicles Act. The relevant portion of the said judgment is reproduced hereunder:-

“As set out in the Second Schedule to the Motor Vehicles Act, 1988, for boy of 13 years of age, multiplier of 15 would have to be applied. As per the Second Schedule, he being non-earning person, sum of Rs.15,000/- must be taken as the Motor Vehicles Act, 1988, for boy of 13 years of age, multiplier of 15 would have to be applied. As per the Second Schedule, he being non-earning person, sum of Rs.15,000/- must be taken as the

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income. Thus, the compensation comes to Rs.2,25,000/-”

5. The case of Sobhagya Devi & Ors. Vs. Sukhvir Singh & Ors., II (2006) ACC 1997 relates to the death of 12-year old boy. Following the decision of the Apex Court in Manju Devi’s case (supra), the Rajasthan High Court awarded Rs.2,25,000/- by applying the Second Schedule of the Motor Vehicles Act.

6. The case of Syam Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320 relates to the death of child aged 5 years. This Court relying on the judgment of the Apex Court in Manju Devi’s case (supra) awarded compensation to the parents by applying the notional income of Rs.15,000/- and multiplier of 15 as per the Second Schedule and further awarded Rs.50,000/- for loss of company of the child as also pain and suffering by them. The relevant portion of the said judgment is reproduced hereunder:-

“3. By and under the award dated 5.12.2003, sum of Rs.1,00,000/- has been awarded to the appellants. While awarding sum of Rs.1,00,000/- to appellants, learned M.A.C.T. has held that the income of the deceased child was incapable of assessment or estimation. Recognising that every parent has reasonable expectation of financial and moral support from his child, in the absence of any evidence led, learned M.A.C.T. opined that the interest of justice requires that appellants are compensated with the sum of Rs.1,00,000/-.

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4. Had the Tribunal peeped into the Second Schedule, as per section 163-A of Motor Vehicles Act, 1988, it would have dawned on the Tribunal that vide serial No.6, notional income for compensation in case of fatal accidents has been stipulated at Rs.15,000/- per annum.

5. In the decision reported as Manju Devi V. Musafir Paswan, 2005 ACJ 99 (SC), dealing with the accidental death of 13 years old boy, while awarding compensation under the Motor Vehicles Act, 1988, Apex Court took into account the notional income stipulated in the Second Schedule being Rs.15,000/- per annum.

6. In the instant case, baby Chanda was aged 5 years. Age of the appellants as on date of accident was 28 years and 26 years respectively as recorded in the impugned award. Applying multiplier of 15 as set out in Second Schedule which refers to the said multiplier, where age of the victim is upto 15 years, compensation determinable comes to Rs.15,000 x 15 = Rs.2,25,000/-.

7. The learned Tribunal has awarded Rs.1,00,000/- towards loss of expectation of financial and moral support as also loss of company of the child, mental agony, etc. I have found that the parents are entitled to compensation in the sum of Rs.2,25,000/- on account of loss of financial support from the deceased child. I award sum of Rs.50,000/- on

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account of loss of company of the child as also pain and suffering suffered by them as result of the untimely death of baby Chanda. Appeal accordingly stands disposed of enhancing the compensation to Rs.2,75,000/-.

7. In the case of R.K. Malik vs. Kiran Pal, III (2006) ACC 261, 22 children died in an accident of school bus which fell in river Yamuna. This Court held the Second Schedule of the Motor Vehicles Act to be the appropriate method for computing the compensation. With respect to the non-pecuniary damages, the Court observed that loss of dependency of life and pain and suffering on that account, generally speaking is same and uniform to all regardless of status unless there is specific case made out for deviation. This Court awarded Rs.75,000/- towards non-pecuniary compensation.

8. The aforesaid judgment of this Court was challenged before the Hon’ble Supreme Court and which has been decided recently on 15th May, 2009 and is reported as R.K. Malik vs. Kiran Pal, 2009(8) Scale 451. The Hon’ble Supreme Court held that theclaimants are also entitled to compensation towards future prospects. The Hon’ble Supreme Court held that the claimants are entitled to compensate towards future prospects and granted further compensation of Rs.75,000/- towards future prospects of the children…...”

11.In this case, the accident took place on 17.05.2010 whereas in Satender (supra) and Kaushlya Devi (Supra) the accident took place almost ten years back. Satender (supra) and Kaushlya Devi (Supra) the accident took place almost ten years back.

12.Considering the latest judgment of the Supreme Court in R.K.

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Malik v. Kiran Pal, 2009 (8) Scale 451, the award of compensation of ` 3,75,000/- i.e. ` 2,25,000/- on account of loss of dependency, ` 75,000/- towards future prospects and ` 75,000/- towards non pecuniary damages cannot be faulted.

13.The Appeal is devoid of any merit; the same is accordingly dismissed.

FEBRUARY 13, 2012 vk

(G.P. MITTAL) JUDGE

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