National Insurance Co.Ltd v. Lt.Col.A.K.Dimri

V.B.GUPTA, J. Bisht/rs

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.359/2007& CM No.12456/2008 % Judgment reserved on: 24th September, 2008 Judgment delivered on: 21st October, 2008 National Insurance Company Ltd. RO-2, 2-E/9, Jahandewalan Extension New Delhi-55. ….Appellant Through: Mr.S.L.Gupta, Adv. Versus 1.Ltd.Col.A.K.Dimri, s/o Late Sh.P.R.Dimri, 2.Mrs.Sushma Dimri, w/o Lt.Col.A.K.Dimri Both residents of C-2, Service Officer Flates, DRDO Campus, Timarpur, Delhi. 3.Hira Lal, s/o Sh.Brij Lal r/o Pocket D/735, Dilshad Garden, Delhi. …Respondents. Through: Ms.Manjeet Chawla for Respondents 1 & 2. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Appellant-Insurance Company has filed present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short as "Act") challenging the judgment dated 10th May, 2007 passed by Sh. V. K. Maheshwari, Judge, MACT, New Delhi (for short as "Tribunal"). 2. Brief facts of this case are that on 6th August, 2002 at about 9.45 a.m., Kamudi Dimri was standing at the bus stop South Moti Bagh, Delhi waiting for bus, when RTV Bus No.DL-IVA-1446 came from Safdarjung Hospital side in a rash and negligent manner and struck against her, as a result of which she fell down and sustained head injuries and expired on the spot. 3. The accident took place due to negligence of the driver of the offending vehicle, Fatah Khas. 4. Vide order dated 7th February, 2004 of the Tribunal, respondent No.1,Fatah Khas was allowed to be deleted from array of parties and thereafter amended memo of parties was filed. 5. It is stated that respondent No.3, herein, (Hira Lal) is vicariously liable to pay compensation as per the provisions of the Act, being the owner of the offending vehicle and the offending vehicle was insured with appellant-Insurance Company. 6. Vide impugned judgment, the Tribunal awarded compensation amounting to Rs.10 lacs to claimants, who are respondent No.1 and 2 herein. 7. Being aggrieved by the award passed by the Tribunal, the Insurance Company has filed the present appeal. 8. It has been contended by learned counsel for appellant that the income of the deceased who was a student should have been taken as notional income at Rs.15,000/- per annum, when she was not earning any amount and the multiplier is to be applied as per the age of the claimants or as per the age of the deceased, whichever is less. 9. Other contention is that award of Rs.10,00,000/- is without any basis. 10. As regards to the income of deceased, it is contended by learned counsel for the claimants that the deceased was about 20 years of age and studying in B.A. III year (Economics Honours) Venketshwara College, Delhi. She was a brilliant student having sound health. She was preparing for MBA entrance examination of IIM and other prestigious institutes. She had joined IIM Coaching classes in Connaught Place in May 2002 and paid fee of Rs.11,900/- and was also earning Rs.5,000/- per month at the time of accident as she was a Computer Programmer and Analyst as well. 11. Claimants have produced the photocopies of the certificates of deceased, Ex.PW1/1 to 17. 12. In M.S. Grewal and another v. Deep Chand Sood and others, 2001 ACJ 1719, the Apex Court has observed as under; "Be it placed on record that while assessing damages, all relevant materials should and ought always be placed before the court so as to enable the Court to come to a conclusion in the matter of affection of pecuniary benefit by reason of the unfortunate death. Though mathe- matical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefore. It is not a fa