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2018 DIGILAW 2433 (DEL)

Nasarin v. Megma HDI Gen Ins Co. Ltd.

2018-08-27

SUNIL GAUR

body2018
JUDGMENT : SUNIL GAUR, J. 1. The above captioned two appeals arise out of impugned Award of 11th August, 2017, vide which the Motor Accident Claims Tribunal (henceforth referred to as the “Tribunal”) has awarded compensation of Rs. 12,58,624/- with interest @ 9% p.a. to Claimants on account of death of Lock Repairer-Afsar, aged 25 years, in a vehicular accident which took place on 9th July, 2016. 2. In this unfortunate accident in question, a Housewife-Nasarin was grievously injured and the Tribunal has granted compensation of Rs. 84,324/- with interest @ 9% p.a. to her, which is under challenge in the above captioned first appeal. 3. Since these two appeals arise out of one vehicular accident, therefore, with the consent of learned counsel for the parties, these appeals have been heard together and are being decided by this common judgment. 4. The factual background of this case, as noticed in the impugned Award, is as under:- “Brief facts of the case is that on 09.07.2016 at about 04.00 PM, petitioner Nasarin and deceased Afsar alongwith other persons were going from Kabela Aligarh to Sadabad, Aligarh in a vehicle bearing registration No. UP-86T-2821 which was driven by respondent No. 1 in a rash and negligent manner and with high speed. All the occupants of above-said vehicle asked the respondent No. 1 to drive carefully, but he kept on driving the vehicle in rash and negligent manner. When the vehicle reached in front of Shri RB Cold Storage, Chandpa, respondent No. 1 overtook another vehicle in negligence manner and the vehicle overturned due to which all occupants alongwith petitioner Nasarin and deceased Afsar suffered injuries. Petitioner was taken to Tyagi Hospital, Aligarh. Deceased was taken to District Hospital, Hathras. Later on, he was taken to Safdarjung Hospital, New Delhi where he died on 16.07.2016.” 5. To render the impugned Award, the Tribunal has primarily relied upon evidence of Injured-Nasarin and Claimants/legal heirs of deceased-Afsar and evidence of Respondent-Insurer on record. On the strength of evidence recorded, impugned Award has been rendered. 6. The breakup of compensation awarded by the Tribunal to legal heirs of deceased –Afsar is as under:- 1. Loss of dependency Rs. 10,23,624/- 2. Funeral Expenses Rs. 25,000/- 3. Loss of Love & Affection Rs. 1,00,000/- 4. Loss of estate Rs. 10,000/- 5. Loss of Consortium Rs. 1,00,000/- Total Rs. 12,58,624/- 7. 6. The breakup of compensation awarded by the Tribunal to legal heirs of deceased –Afsar is as under:- 1. Loss of dependency Rs. 10,23,624/- 2. Funeral Expenses Rs. 25,000/- 3. Loss of Love & Affection Rs. 1,00,000/- 4. Loss of estate Rs. 10,000/- 5. Loss of Consortium Rs. 1,00,000/- Total Rs. 12,58,624/- 7. The breakup of compensation awarded by the Tribunal to Injured-Nasarin is as under:- 1. Compensation for medical expenses Rs. 18,000/- 2. Compensation for special diet, attendant and conveyance Rs. 15,000/- 3. Compensation for pain and sufferings Rs. 30,000/- 4. Compensation for loss of income Rs. 21,324/- Total Rs. 84,324/- 8. Learned counsel for appellants seeks modification of the impugned Award to the effect that liability to pay the awarded compensation should be of the Respondent-Insurer, while relying upon a recent Supreme Court decision in Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors. (2017) 4 SCC 796 and submits that the Respondent-Insurer must pay and recover. Enhancement in the quantum of compensation granted to legal heirs of deceased-Afsar, is sought on the ground that the Tribunal has assessed income of deceased on minimum wages payable to an unskilled workman in U.P. but has failed to make any addition towards “future prospects”. Reliance is placed by appellants’ counsel upon Supreme Court’s Constitution Bench decision in National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680 to seek addition of 40% towards “future prospects”, as deceased was aged 25 years on the day of accident. 9. It is also submitted by counsel for appellants that the Tribunal has erred in deducting 1/3rd towards personal expenses. It is pointed out that the widow of deceased in her evidence has clearly deposed that father of deceased was also dependent upon him and so, deduction of 1/4th towards personal expenses ought to have been made. 10. The opposition to these appeals by learned counsel for Respondent-Insurer is on the ground that the liability is of the driver and owner of the vehicle in question and Respondent-Insurer has no liability to pay the awarded compensation. It is submitted that awarded compensation is not required to be enhanced on the basis of Supreme Court’s Constitution Bench decision in Pranay Sethi (Supra), as the said decision had been rendered after passing of the impugned Award. It is submitted that awarded compensation is not required to be enhanced on the basis of Supreme Court’s Constitution Bench decision in Pranay Sethi (Supra), as the said decision had been rendered after passing of the impugned Award. It is also submitted on behalf of Respondent-Insurer that the income of deceased has not been established and so, appellant cannot avail of the benefit of Supreme Court’s Constitution Bench decision in Pranay Sethi (Supra). Nothing substantial has been urged on behalf of owner and driver of insured vehicle. 11. Upon hearing and on perusal of impugned Award, evidence on record and the decisions cited, I find that the Tribunal has rightly assessed the income of deceased-Afsar on the basis of minimum wages of an unskilled workman applicable in U.P. In view of Supreme Court’s Constitution Bench decision in Pranay Sethi (Supra), addition of 40% towards “future prospects” is made. Since father of deceased-Afsar was also dependent upon him, therefore, deduction of 1/4th and not 1/3rd towards personal expenses is made. Accordingly, the “loss of dependency” to legal heirs of deceased-Afsar, is re-assessed as under:- Rs. 7,108/- (rounded off) X 12 X 140/100 X 3/4 X 18 = Rs. 16,12,095/- 12. The compensation granted by the Tribunal under the non pecuniary heads needs to be brought in tune with Supreme Court’s Constitution Bench decision in Pranay Sethi (supra). Accordingly, compensation granted by the Tribunal to legal heirs of deceased-Afsar under the head of loss of love & affection is disallowed. The funeral expenses are reduced from Rs. 25,000/- to Rs. 15,000/- and loss of consortium is also reduced from Rs. 1,00,000/- to Rs. 40,000/-. However, compensation granted under the head loss of estate is enhanced from Rs. 10,000/- to Rs. 15,000/- Consequentially, the compensation payable to legal heirs of deceased-Afsar is reassessed as under:- 1. Loss of dependency Rs. 16,12,095/- 2. Funeral Expenses Rs. 15,000/- 3. Loss of estate Rs. 15,000/- 4. Loss of Consortium Rs. 40,000/- Total Rs. 16,82,095/- 13. In the light of aforesaid, total compensation payable to legal heirs of deceasd-Afsar is enhanced from Rs. 12,58,624/- to Rs. 16,82,095/-. The reassessed compensation shall carry interest @ 9% per annum. The enhanced compensation alongwith interest be deposited with the Registrar General of this Court by respondent-Insurer within six weeks and thereafter, it be disbursed to legal heirs of deceased-Afsar in the ratio and manner, as indicated in the impugned Award. 12,58,624/- to Rs. 16,82,095/-. The reassessed compensation shall carry interest @ 9% per annum. The enhanced compensation alongwith interest be deposited with the Registrar General of this Court by respondent-Insurer within six weeks and thereafter, it be disbursed to legal heirs of deceased-Afsar in the ratio and manner, as indicated in the impugned Award. So far as Injured-Nasarin is concerned, I find that the quantum of compensation granted to her is just and reasonable and is hence maintained. The compensation awarded be released to Injured- Nasarin forthwith. 14. In view of Supreme Court’s decision in Manuara Khatun (Supra), the respondent- Insurer has to first pay the awarded compensation and thereafter recover it, from the owner and driver of the insured vehicle. Accordingly, respondent-Insurer is granted recovery rights against owner and driver of insured vehicle in question. 15. With aforesaid directions, the above captioned two appeals are disposed of.