Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 02.09.2022
Pronounced on: 13.09.2022
+ MAC.APP. 520/2013 & CM APPL. 47053/2018
(enhancement of compensation/Cross Objection), CM
APPL. 47054/2018 (condonation of delay)
RELIANCE GENERAL INSURANCE
CO. LTD. ..... Appellant
Through: Mr. A. K. Soni, Advocate
versus
SMT PUSHPA BISHT AND ORS ..... Respondents
Through: Mr. S. N. Parashar, Advocate
CORAM:
HON’BLE MR. JUSTICE GAURANG KANTH
J U D G M E N T
GAURANG KANTH, J.
CM. No. 47054/2018 (Condonation of delay in filing cross
objections)
1. Present application has been filed for condoning the delay in
filing the cross objections.
2. Since the matter has been heard finally and also for the reasons
stated in the application, the delay in filing the cross objections
is condoned.
3. Application stands disposed of.
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 1 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
MAC. APP. 520/2013 & CM APPL. 47053/2018 (enhancement of
compensation/Cross Objection)
4. Both, the appeal and the cross objection, are heard together and
disposed of by this common judgment as both arise out of the
common Award dated 18.4.2013 (“ impugned Award ”) passed
by the learned Tribunal which is impugned before this Court.
5. The present appeal has been preferred by the Appellant under
Section 173 of the Motor Vehicles Act, 1988 against the
impugned award dated 18.4.2013 passed by the Court of
learned Presiding Officer, Motor Accident Claims Tribunal,
Central District, Delhi and the Cross Objection under Order
XLI Rule 22 has been preferred by respondent Nos. 1 and 2 for
enhancement of the compensation amount.
6. By way of the impugned Award dated 18.04.2013, the learned
Tribunal Awarded a compensation of Rs. 74,76,027/- with
interest @ 9% per annum from the date of filing of the claim
petition i.e. 09.09.2010 till realization and directed the
Insurance Company to deposit the entire awarded amount
before the Tribunal.
Submission on behalf of the Appellant
7. Mr.A.K.Soni learned counsel for the Appellant contended that
the impugned Award passed by the learned Tribunal is based
on conjucture and surmises and is liable to be set aside on the
ground that it was not proved whether the vehicle bearing
registration no. HR-20R-7808 was driven in a rash and
negligent manner. He further submitted that there was no
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 2 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
cogent and reliable evidence to hold that respondent
No.4/driver was guilty of causing the accident. He further
submitted that the learned Tribunal erred in placing reliance on
the testimony of PW-3 Sh. Shingara Singh, who is not an eye
witness to the alleged accident. He further contended that the
learned Tribunal ignored the statement of respondent no. 3
wherein he has categorically stated that the alleged accident
took place while saving a buffalo calf which came suddenly on
road.
8. Learned counsel further with regard to modification of
quantum of compensation contended that learned Tribunal has
erred in considering the amount of compensation to be paid
under the head „ Future Prospects ‟ by adding 30% to the
assessed income of the deceased as there was no material
evidence to prove that the future income of the deceased would
increase to such extent, who was in the employment for only 21
days and not was not a permanent employee.
9. Learned counsel while placing reliance on the dicta of Hon’ble
Supreme Court in National Insurance Co. Ltd Vs Pranay
Sethi &Ors reported as 2017 AIR (SC) 5157, contended that
taking into account the age of the deceased, a deduction of 1/3
under the head „ Personal and Living Expenses ‟ is to be made.
He further contended that in terms of judgment of Pranay Sethi
(Supra) compensation under the head „ Love and Affection ‟ has
to be deducted.
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 3 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
Submission on behalf of the Respondents
10. Mr. S. N. Parashar learned counsel appearing on behalf of the
respondents/claimants contended that the impugned Award
passed by the learned Tribunal is based on cogent, consistent
and reliable evidences of PW-3, Sh. Shingara Singh (eye
witness), PW-2, Sh. Yashpal, Senior Executive, Tata
Communications Ltd and PW-4, Sh. G.S. Sharma, Manager,
Tata Communications Ltd which could not be impeached
during the cross-examination. Learned counsel while placing
reliance on the dicta of Pranay Sethi (supra), contended that an
addition of 40% of the established income of the deceased
should be granted under the head „ Future Prospects ‟. He
further contended that the Hon‟ble Supreme Court in Pranay
Sethi (Supra) upholds the deduction ascertained in the case of
Sarla Verma & Ors. Vs DTC & Anr. reported as 2009 (6) SCC
121 taking into account the age of the deceased and as such a
deduction of 1/4 under the head „ Personal and Living
Expenses ‟ is to be made. However, learned counsel fairly
accepted that in terms of the dicta of the Hon‟ble Supreme
Court in the case of Pranay Sethi (supra), grant of
compensation under the head „ Love and Affection ‟ has to be
deducted from the total amount of compensation Awarded by
the learned Tribunal. He further contended that the grant of
compensation under the head „ Loss of Consortium ‟ is to be
fixed @ Rs. 40,000/- with an increase of 10% after a period of
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 4 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
3 years. Learned counsel further contended that in terms of
Pranay Sethi (supra) , compensation under the head „ Loss of
Estate ‟ and „ Funeral Expenses ‟ is required to be enhanced to
the respondents/claimants, which has not been correctly
considered by the learned Tribunal.
Courts Reasoning on the preliminary question of negligence
11. The learned Tribunal after going through evidence and
considering the submissions made by respective parties on
issue of negligence has concluded as under:-
“ 13. PW-3 Sh.Shingara Singh, who is an
eyewitness of the case has also tendered in
evidence his examination-in-chief by way of
affidavit Ex.PWS/A, wherein he testified that on
17.08.2009 at about 6;30pm he was going by
his taxi from Taxi Stand Faridkot to Bhatinda
via Lambh Wali to drop some passengers.
When he reached near Bus Stand Lambh Wali
suddenly a white car bearing registration no.
HR-99- CN-2215 overtook his Taxi. The driver
of the car was driving the car very rashly,
negligently and at high speed of about 90-100
Kilometer per hour . The car driver lost control
of his car and hit a Teak tree about 10 meters
away from the road on the right side. According
to him the car in accident was badly damaged
and the driver and passenger of the said car
were seriously injured. Many persons gathered
there and took out both injured persons from the
car. The passenger on the front seat besides the
driver whose name was Mohan Singh Bisht had
died while the driver whose name was Harish
Kumar was seriously injured. He further testified
that he had given his statement on the next date
when the police had inquired him. He testified
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 5 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
that the accident had taken place due to rash
and negligent driving of the driver of the car.
On being cross-examined by Ld. counsel for
respondent no.3, Insurance Company he testified
that the accident had taken place the city. He
testified that he had remained at the spot of
accident for about 1/2 hour. He denied the
suggestion that he had not seen the accident and
he is deposing falsely.
XXXX XXXX XXXX
As such in view of testimonies of the
petitioner No.l as PW-1 and Sh.Shingara Singh
an eyewitness of the accident as PW-3, certified
copies of criminal record produced, no doubt is
left in respect of the having suffered fatal
injuries in road traffic accident on 17.08.2009
due to rash and negligent driving of the
vehicle/Tata-Indica Car bearing registration
No. HR 20 R7808 by respondent-No. 1/driver of
the offending vehicle. The contention of Ld.
Counsel for Insurance Company that the
accident in this case had taken place without the
negligence of anyone and therefore, the
petitioners are not entitled to any compensation
simply does not hold water. Issue No.l is
accordingly decided in favour of the petitioners
and against the respondents .”
12. This Court has gone through the evidence produced by the
respondents in their support. There is no reason to disbelieve
the testimony of PW-3, Sh. Shingara Singh (eye witness), who
also withstood the test of cross-examination. Learned Tribunal
has also evaluated the testimony with great care and has
ascertained the veracity of the testimony by corroborating the
same with other records available on record. Accordingly, this
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 6 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
Court is in conformity with the decision of the learned Tribunal
with regard to asserting that the alleged incident, whereby the
deceased lost his life, has taken place as the offending vehicle
bearing registration no. HR-20R-7808 was driven in a rash and
negligent manner.
13. As regards arguments of learned counsel for the appellants that
the learned Tribunal has erred in determining the correct
income of the deceased is concerned, this Court has gone
through the evidence of PW-2/Sh. Yashpal, Senior Executive,
Tata Communications Ltd and PW-4/Sh. G.S. Sharma,
Manager, Tata Communications Ltd. PW-2/Sh. Yashpal,
Senior Executive, Tata Communications Ltd., during his
examination proved before the learned Tribunal that the
deceased joined their company i.e. Tata Communications Ltd.,
on 27.07.200. PW-4/Sh. G.S. Sharma, Manager, Tata
Communications Ltd., during his examination proved the
compensation sheet before the Tribunal that the annual package
of the deceased was Rs. 4,80,016/-. From conjoint reading of
the testimonies of the witnesses i.e PW-2 and PW-4, it is
evident that the employment and annual package of the
deceased has been proved on record without any realm of
suspicion. Learned Tribunal has also deducted the Income Tax
and conveyance allowance to be paid by the deceased in
arriving at the figure of Rs. 4,43,199/- as the annual income
of the deceased. This court finds no error in calculation or
finding of the learned Tribunal with regard to assessment of
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 7 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
annual income of the deceased for the purposes of grant of
compensation.
14. The rest of the arguments raised by the learned counsel for the
parties are purely legal and based on the law settled by the
Hon‟ble Apex Court. Hon‟ble Apex Court in the case of
Pranay Sethi (supra) has held as under:-
“ 54. As far as the conventional heads are
concerned, we find it difficult to agree with the
view expressed in Rajesh. It has granted Rs.
25,000/- towards funeral expenses, Rs. 1,00,000/-
loss of consortium and Rs. 1,00,000/- towards
loss of care and guidance for minor children. The
head relating to loss of care and minor children
does not exist. Though Rajesh refers to Santosh
Devi, it does not seem to follow the same. The
conventional and traditional heads, needless to
say, cannot be determined on percentage basis
because that would not be an acceptable
criterion. Unlike determination of income, the
said heads have to be quantified. Any
quantification must have a reasonable foundation.
There can be no dispute over the fact that price
index, fall in bank interest, escalation of rates in
many a field have to be noticed. The court cannot
remain oblivious to the same. There has been a
thumb Rule in this aspect. Otherwise, there will
be extreme difficulty in determination of the same
and unless the thumb Rule is applied, there will
be immense variation lacking any kind of
consistency as a consequence of which, the orders
passed by the tribunals and courts are likely to be
unguided.
Therefore, we think it seemly to fix reasonable
sums. It seems to us that reasonable figures on
conventional heads, namely, loss of estate, loss
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 8 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
of consortium and funeral expenses should be
Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/-
respectively . The principle of revisiting the said
heads is an acceptable principle. But the revisit
should not be fact-centric or quantum-centric. We
think that it would be condign that the amount
that we have quantified should be enhanced on
percentage basis in every three years and the
enhancement should be at the rate of 10% in a
span of three years.
We are disposed to hold so because that will
bring in consistency in respect of those heads.
XXXX XXXX XXXX
59. Having bestowed our anxious consideration,
we are disposed to think when we accept the
principle of standardization, there is really no
rationale not to apply the said principle to the
self-employed or a person who is on a fixed
salary. To follow the doctrine of actual income at
the time of death and not to add any amount with
regard to future prospects to the income for the
purpose of determination of multiplicand would
be unjust. The determination of income while
computing compensation has to include future
prospects so that the method will come within the
ambit and sweep of just compensation as
postulated Under Section 168 of the Act. In case
of a deceased who had held a permanent job with
inbuilt grant of annual increment, there is an
acceptable certainty. But to state that the legal
representatives of a deceased who was on a fixed
salary would not be entitled to the benefit of
future prospects for the purpose of computation of
compensation would be inapposite. It is because
the criterion of distinction between the two in that
event would be certainty on the one hand and
staticness on the other. One may perceive that the
comparative measure is certainty on the one hand
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 9 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
and uncertainty on the other but such a
perception is fallacious. It is because the price
rise does affect a self-employed person; and that
apart there is always an incessant effort to
enhance one's income for sustenance. The
purchasing capacity of a salaried person on
permanent job when increases because of grant of
increments and pay revision or for some other
change in service conditions, there is always a
competing attitude in the private sector to
enhance the salary to get better efficiency from
the employees. Similarly, a person who is self-
employed is bound to garner his resources and
raise his charges/fees so that he can live with
same facilities. To have the perception that he is
likely to remain static and his income to remain
stagnant is contrary to the fundamental concept
of human attitude which always intends to live
with dynamism and move and change with the
time. Though it may seem appropriate that there
cannot be certainty in addition of future prospects
to the existing income unlike in the case of a
person having a permanent job, yet the said
perception does not really deserve acceptance.
We are inclined to think that there can be some
degree of difference as regards the percentage
that is meant for or applied to in respect of the
legal representatives who claim on behalf of the
deceased who had a permanent job than a person
who is self-employed or on a fixed salary. But not
to apply the principle of standardization on the
foundation of perceived lack of certainty would
tantamount to remaining oblivious to the marrows
of ground reality. And, therefore, degree-test is
imperative. Unless the degree-test is applied and
left to the parties to adduce evidence to establish,
it would be unfair and inequitable. The degree-
test has to have the inbuilt concept of percentage.
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 10 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
Taking into consideration the cumulative factors,
namely, passage of time, the changing society,
escalation of price, the change in price index, the
human attitude to follow a particular pattern of
life, etc., an addition of 40% of the established
income of the deceased towards future prospects
and where the deceased was below 40 years an
addition of 25% where the deceased was between
the age of 40 to 50 years would be reasonable.
60. The controversy does not end here. The
question still remains whether there should be no
addition where the age of the deceased is more
than 50 years. Sarla Verma thinks it appropriate
not to add any amount and the same has been
approved in Reshma Kumari. Judicial notice can
be taken of the fact that salary does not remain
the same. When a person is in a permanent job,
there is always an enhancement due to one reason
or the other. To lay down as a thumb Rule that
there will be no addition after 50 years will be an
unacceptable concept. We are disposed to think,
there should be an addition of 15% if the
deceased is between the age of 50 to 60 years and
there should be no addition thereafter. Similarly,
in case of self-employed or person on fixed
salary, the addition should be 10% between the
age of 50 to 60 years. The aforesaid yardstick has
been fixed so that there can be consistency in the
approach by the tribunals and the courts. ”
(emphasis supplied)
15. From the perusal of the aforesaid Judgment it is emphatically
clear that for the conventional heads, namely, „ Loss of Estate ‟,
Loss of Consortium ‟ and „ Funeral Expenses ‟ the amount of
compensation is fixed as Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/-, respectively with an increase of 10% after a period of
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 11 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
3 years. Further, since the deceased was the age of 30 years at
the time of alleged incident an addition of 40% of the
established income should be granted under the head „ Future
Prospects’ . With regard to deduction to be made towards
„ Personal and Living Expenses ‟, the Hon‟ble Supreme Court in
Pranay Sethi (Supra) upholds the deduction ascertained in the
case of Sarla Verma (supra) . As per the Judgment passed by
the Hon‟ble Supreme Court in the case of Sarla Verma (Supra)
deduction are to be calculated as under :-
“14. Though in some cases the deduction to be
made towards personal and living expenses is
calculated on the basis of units indicated in Trilok
Chandra, the general practice is to apply
standardized deductions.
Having considered several subsequent decisions
of this Court, we are of the view that where the
deceased was married, the deduction towards
personal and living expenses of the deceased,
should be one-third (1/3rd) where the number of
dependent family members is 2 to 3, one-fourth
(1/4th) where the number of dependant family
members is 4 to 6, and one-fifth (1/5th) where
the number of dependant family members
exceed six .
15. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows a
different principle.
In regard to bachelors, normally, 50% is
deducted as personal and living expenses,
because it is assumed that a bachelor would tend
to spend more on himself. Even otherwise, there is
also the possibility of his getting married in a
short time, in which event the contribution to the
parent/s and siblings is likely to be cut
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 12 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
drastically. Further, subject to evidence to the
contrary, the father is likely to have his own
income and will not be considered as a dependant
and the mother alone will be considered as a
dependent. In the absence of evidence to the
contrary, brothers and sisters will not be
considered as dependents, because they will
either be independent and earning, or married, or
be dependant on the father.
Thus even if the deceased is survived by parents
and siblings, only the mother would be
considered to be a dependant, and 50% would be
treated as the personal and living expenses of
the bachelor and 50% as the contribution to the
family. However, where family of the bachelor is
large and dependant on the income of the
deceased, as in a case where he has a widowed
mother and large number of younger non-
earning sisters or brothers, his personal and
living expenses may be restricted to one-third
and contribution to the family will be taken as
two-third . ”
16. It is borne out from the records that admittedly the deceased
was aged 30 years and he was survived of four legal heirs i.e.
his mother, father, wife and minor daughter. Accordingly, in
terms of the aforesaid judgments deduction towards personal
and living expenses of the deceased, should be one-fourth
th
(1/4 ). As far as grant of compensation under the head „ Love
and Affection ‟ is concerned, this Court relies on the judgment
of the Hon‟ble Supreme Court in the case of United India
Insurance Company Limited V Satinder Kaur alias Satwinder
Kaur and Ors reported as (2021) 11 SCC 780 which held that
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 13 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
„ The Constitution Bench in Pranay Sethi, has recognized only
three conventional heads under which compensation can be
awarded viz. loss of estate, loss of consortium and funeral
expenses. In Magma General, this Court gave a comprehensive
interpretation to consortium to include spousal consortium,
parental consortium, as well as filial consortium. Loss of love
and affection is comprehended in loss of consortium ‟.
17. The Hon‟ble Supreme Court in the case of Satwinder Kaur
(Supra) has further directed to „ award compensation for loss of
consortium, which is a legitimate conventional head. There is
no justification to award compensation towards loss of love
and affection as a separate head ‟. Accordingly, in terms of
law settled by Hon‟ble Supreme Court, the grant of
compensation of Rs. 1,00,000/- under the head „ Love and
Affection ‟ is unwarranted and deducted from the total
compensation.
18. In view of the above discussion the impugned Award dated
18.04.2013 is modified to the following extent:
(a) „ Loss of dependency ‟ is calculated as
1. Rs. 4,43,199/- (Annual income) + 40%
(Rs.1,77,280/-) = Rs. 6,20,479/-
th
2. Rs. 6,20,479/- less 1/4 deduction (Rs. 1,55,120/-)
= Rs. 4,65,359/-
3. Rs. 4,65,359/- X 17 = Rs. 79,11,103/-
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 14 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
(b) „ Loss of Consortium ‟ is computed as Rs. 44,000 X 4 =
1,76,000/- to be paid to the Respondents/claimants.
(c) „ Loss of Estate ‟ is quantified as Rs. 16,500/- to be
paid to the Respondents/claimants.
(d) „ Funeral Expenses is quantified as Rs. 16,500/- to be
paid to the Respondents/claimants.
(e) Compensation of Rs. 1,00,000/- paid under the head
„ Love and Affection ‟ is comprehended under the head
„ Loss of Consortium ‟ and is deducted from the total
amount Awarded by the Tribunal.
(f) Total compensation to be paid to
Respondents/claimants is ; Rs. 79,11,103/- +
Rs.1,76,000/- + Rs. 16,500/- + Rs. 16,500/- =
Rs.81,20,103/- .
19. Accordingly, the computation of compensation by the learned
Tribunal is enhanced from Rs. 73,46,027/- to Rs. 81,20,103/- to
be paid to the respondents/claimants.
20. The Appellant is directed to deposit differential amount within
a period of 4 weeks. On deposit of the differential amount,
Registry is directed to release the balance amount alongwith
interest to the respondents/claimants after taking into the
account the modification of compensation made by the present
order, within a period of 4 weeks. Statutory amount, if
deposited, be released to the appellant.
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 15 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07
21. There would be no change in the rate of interest awarded by the
learned Tribunal.
22. Registry is further directed to place the matter before this Court
for directions, if the differential amount as mentioned above, is
not deposited by the appellant within the time stipulated above.
23. Appeal and Cross Objection stand disposed of. No order as to
costs.
GAURANG KANTH
(JUDGE)
SEPTEMBER 13, 2022
n
MAC.APP. 520/2013 &
CM No. 47053/2018 (Cross objections ) Page 16 of 16
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:23.09.2022
19:00:07