National Insurance Co. Ltd v. Divya Mishra & Ors

\: * IN I'T{E HIGH COUR1T OF DELIXI AT NI}W DEI.HI MAC.APP .260120T0 NATIONAL INSURANCE CO. LTD. Appellant Ihrough: Mr. Pankaj Seth, Advocate vcrsus DIVYA MISHRA ffin' Mr. Deepao rrr*i';r*",il111ttr; lhakur, Advocates for the responderits No.1 to 3 i MAC.APP. 303/2011 NATIONAI-INSURANCE CO. LTD. ..... Appellant Through: Mr. Pankaj Seth, Advocate versus I)IVYA MISI-IRA & ORS. ..... Respondents Through: Mr. Deepak Tyagi and Mr. Sushil Thakur, Advocates for the respondents No.1 to 3 Date of Decision : April 2l,20ll % Page I of13 \ o Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. COITAM: trION'I}I,E MS. JUSTICE ITEVA KHETRAPAL

¶1Whether reporters of local papers may be allowed 1'/o to see the judgment?

¶2Io be referedlo the Reporter or not? \u

¶3Whether judgment shouid be reported in Digest? Li eo oRpER (ORAL) : I{EVA KHETRAFAL. J. l. By way of this order it is proposed to decide two appeals against the judgment and award of the Motor Accident claims liibunal, Delhi dated L6.12.2009 passed in case MACT No. 278/07, onc bearing MAC App. No. 26012010, being the appeal filed by rhe appellant -- M/s. National Insurance Company l,td., and the other bearing MAC App. No. 30312011, being the cross objectioris filed by the clairnant Smt. Divva Mishra.

¶2'I'he brief facts relating to the filing of the present appeal and the cross objections thereto are that one sh. shckhar Mishra died in a motor vchicular accident on 26.10.06. A claim petition under the Motor Vehicles Act, 1988 was filed by the widow and the parents of the deceascd against the driver, the owner and the insurer of the MAC. APP. 260/2010 and MAC. APP. 303/2011 Pase 2 of 13 \ C L offending vchicle. The learned rribunal relying upon the judgment of this court in the case of united India Insurance company Ltcl. vs. Reeta Devi, MAC. APP. No.65l/2007 decided on 04.11.08 held the appellant - Insurance Company liable to pay a sum of Rs. 5,150/- pcr month each to the mother and the father of the deceased till their death, in addition to a sum of Rs. 4,05,200/- alongrvith interest at the rate of 7.5o/o per annum from the date of institution of petition till the date of realization. The operative part of the impugnecl arvard rcads as under: " 19. In the judgnent delivered by l{ott,ble Justice Mr. V.B.Gupta in the case titled as Unitetl fndia Insurance Companv Ltd. vs. Reets Devi. decided on 04.11.08 and was circulated to the Tribunals for compliance, wherein it has been held that: ft would be just & reasonable if provisiott is made for each of the dependents as per tlteir oges by.way of monthly payment and olso secure tlte interest of the claimants till they would have remained dependent upon tlre earnings of the deceased.

¶20Since the debeased .vvould have been earning { 15,517/-p.m. and would have been contributing about { ruJ!!/-._eU, to.rvards MAC. APP. 260/2010 and MAC. APP.303/2011 Pugelof 13 petitioner No.2 & 3, the share of each of petitioner under these circuntsiances is assessed as under;-

¶1Petitioner No.2, Smt. Deepo Mishra : {5,150/- p.m.

¶2Petitioner No.3, Sh. Rerm Lakhon Mishra : ?5,150/- p.m.

¶21The present claim petition v,as filed on

23.03.2007. This case is being disposed of today i.e. 15.12.2009 and by January, 2010 about 34 montlts would have passed. Petitioner No. 2 & 3 are entitled to cornpensation @ ' 10,300/- p.m. and accordingly .for this period the amount of contpensation comes to 3$0,000/-. {J!,500 X--JA :_t

¶22In addition to it, Petitioner No.I being the widow of deceased is entitled to be contpensated for loss of consortium. Let she be paid {J!L!00/! towards loss of consortium. {_J,000L is also granted to petitioners towards loss of estate.

¶23In addition to it, all the petitioners are entitled to be compensated for loss of love and. affection. Deceased died at young age. IIe te.ft behind young wife and aged parents. T'hey will miss him through out their lives. Nothing can ever compensate the actual /oss. Only a humble attempt is made by the Tribunal to apply soothing balm over their wounds. As such Petr. no. 2 & 3 being parents of deceased and Petr No.I being his wife are granted { SO,000l nr Uss of m affection. MAC. APP. 260/2010 and MAC. APP. 303/201I Pase 4 of13 g

¶24In addition to it, petitioners are entitled to be compensatedfor funeral expenses. The second schedule has prescribed a figure of { 2,000/- which is very much on the lower side. When price of all 'the commodities are revised front time to time and even minimum wages are being periodically increased, there is no point in sticking ' to low figure of { 2,000/-. Let petitioners be paid { 5,000/- towards funeral expenses as lot of money is required to be spent on numerous religious rites and ceremontes and also on transportation of body.

¶25In vietv of above additions, total compensation payable to petitioners is as under besides the future monthly dependency mentioned separately L Loss ofdependencyfor the period from tlte date ofJiling of petition till today:

¶2Loss of consortium

¶3Loss of estate

¶4Lose of love and affiction :

¶5Funerol experrses Total 3,50, 200/- 10,000/- 5,000/- 30,000/- 5,000/- 4,05,200/- 26, As far as compensation for future period is concerned, i.e. from lst February, 2010 onwards, petitioner No.2 & 3 shall be poid { 5,150/- each p.nt till their desth.

¶27Both the petitioner Nos. 2 & 3 shall have to furnish Ltfe Certificate to National Insurance Company once in a year i.e.'in the month of MAC. APP. 260/2010 and MAC. APP. 303/2011 Psge 5 of lJ February every year. These certi,ficates are to be submitted to the insurance company in l"ebruary, 2010 and thereafter every year. Iiurther, keeping in vtew the run-atvay inflation and price rise and the fact that deceased's salary would have increased with the passage of time, the claimants shall be entitled to increase in compensation by 25% after every 5 years on their ntonthly contpensation i.e. Petitioner no.2 & 3 shall get 2594 increase in the ntonthly compensation with effect front liebruary 201 5 and so on subject to the abovesaid limitation subject to death of petitioner no.2 & 3.

28.

¶29So far as the liability to pay the compensation is concerned, it is primarily of lll & R2 being driver and owner of ffinding vehicle and R3, being insurer is vicariously liable for the damages suffered by the petitioners. The vehicle was duly insured with R-3 as on the date of the accident and RI was having valid and effective driving license, therefore, R-3 is liable to pay the compensation.

¶30R-3 shall send the respective share of monthly payntent to the petitioner no.2 & 3 by vtay of crossed cheques by l0th of every ntonth at the addresses ntentioned in the memo of the parties or at any other add.ess to be furnished lty them to the insurance company directly.

¶31In case, there is any default on the part of the insurance company in making payment in time, the clatmants shall be entitled to interest at the rate of 7.5% per annumfor the delayed period. MAC. APP. 260/2010 and MAC. APp. 303/201I I'sge 6 of 13 \0

¶32Asfar as compensationfi'om the date of the filing of the petition till January, 2010 /s concerned alongwith compensation under the heads discussed above, I hold that Petitioners are entitled to receive compensation of Rs.4,05,200/- (including interim compensation of Rs.50,000/- alreadJt awarded) to be pavable bv insurance companv as discussed above. This issue ls decided accordingly.

¶33RELIEF: In view of the aforesaid discussions, I hereby hold that all the petitioners are entitled to total amoun of U!5,200/-. (after deduction of' interim award of { 50,000/-) to be paid by R-3, insurance conxpany vithin 60 dalts of todatt alonguith interest to be calculated @ 7J.Te-p3I-annum from the date of institution Q|f-lhe-p-eJitte.a. till date of its realization. Tlris compensation alongwith proportionate interest is apportioned between tlte petitioners os under:

¶1Petitoner no. 7, Smt. Divya Mishru: {35'000/-

¶2Petittioner no. 2, SmL Deepa Mishra {1,60,000/-

¶3Petitioner no. 3, Sh. Ram ' Lakhan Misltra: { 1,60,000/-."

¶3As stated hereinabove, aggrieved by the aforesaid ar.vard, the Insurance Co. as well as the widow of the deceased have come in appeal before this Court. Although a number of grounds havc been taken by the Insurance Company in its appeal, thc only ground MAC-APP. 260/2010 and MAC. APP.303/2011 Pqlce-Z-atE \ , this court at the time of the hearins. was as to the rnode of disbursement of the award amount. t"r. ,u*ui Seth, the learned counsel for the Appellant submits that in place of monthly payments awarded by the 'fribunal, the award amount be disbursed to the claimants in the form of a lumpsum. Mr. Deepak Tyagi , the learned counsel for the claimants (Respondents no. 1 to 3 in MAC App. No. 260/2010) echoes the sentiments of the counsel for the appellant stating that a lumpsum award would be in the interest of all concerned.

¶4The aforesaid controversy regarding the mode of disbursernent of the award amount has already been set at rest by the llon'ble Supreme Court in SLP (Civil) No. 1579612009 titled as "Reeta l)evi and Anr. versus Unitid India Insurance Co. Ltd. and Anr." decided on22.02.2010, wherein the judgment of this Court relied upon by the learned Tribunal in the case of Reeta Devi ancl Ors (supra) was reversed and the award by way of monthly instalments was held to bc not proper. The aforesaid decision of Supreme Court has been followed by this Court in New'India Assurance Co. I'td. versus MAC. APP. 260/2010 and MAC. APP. 303/20 I I Poge I of 13 v Balpreet Kaur, MAC App. 25012010 decided on 21.04.2010. The relevant part of the said judgment is as follows: . "There is no provision under Motor Vehicles Act for fixing cornpensation on ntonthly payntent basis or lilre pension as fixed by the learned Tribunal. The compensation has to be muarded to the parties as a lumpsum amount. This Cottrt vide order dated 4th Noventber 2008 in MAC Appeal No.65I of 2007 had passed a similar ordqr of fixing pension and the matter was taken to the Supreme Court in SI'P. The order offixing of pension was set aside by the Sttpreme Court and a luntpsum payntent was directed to be given to the claimants. Keeping in view the fact that grant of compensation as monthly payment has not found ' favour with the Supreme Cotu't, I consider that the Tribunal shouldfix lumpsunt conxpensation in accordance with law. In the result, both the appeals are allowed and the nxatter is remanded back to the I'ribunal fo, adj udi cating lumps urn c omp ens ation pay ab le . to the claimant as per law."

¶5In a recent decision of this Court in the case of Rsmkoli and Ors. versus Ashok Kumar and Ors., MAC App. No. 170/2009 dated

22.01.2011, following the decisions in Reeta Devi und Balpreet Kaui (supra) the order of the learned Tribunal awarding a sum of I{s. 3,9871-to be paid to each of the two claimants every month till their MAC. APP. 260/2010 snd MAC. APP. 3032011 Paee 9 of IJ $ death was set aside and a lumpsum compensation was awarded in its place. Thus, the settled legal position is that lumpsum compcnsation rather than payment of compensation on monthly instalment basis must be paid.

¶6Adverting to the facts of the present casc, the mode of calculating the compensation by the Tribunal was as follows. Aftcr adding futurc prospects and deducting pcrsonal and living expcnses of the deceased, the Tribunal calculated the monthly loss of dependency of the claimants to be in the sum of i10,3001-per month. Thcrcaflcr, instcad of calculating the annual loss of dependency and multiplying the resultant figure by an appropriate rnultiplier to ascertain the total loss of dependency suffered by the claimants, thc Tribunal apportioncd the monthly loss of dependency between the mother and the father of the deceased equally and dirccted the Insurance Company to pay a sum of f 5,1501-per month to cach of them till their death.

¶7I'he Tribunal, thus, erred in not calculating lumpsum compensation payable to the claimants, and by not augmenting the MAC. APP. 260/20 I 0 and MAC. APP. 303/20 I I Page 10 of13 multiplicand of Rs. 10,300/-per month by multiplying it r,vith an appropriate multiplier. Admittedly, the age of the deceased in the instant case was 27 years and nine months. The appropriate multiplier applicable for the age group of victims between 26 and 30 years of age, it is well settled, is the multiplier of 17. The total loss of dependency thus ought to have been calculated at { 2I,01,200/-(i.e. i 10,300/-x 12 x l7). Deducting ten per cent from this amount towards income-tax payable by the deceased annually, the loss of dependency of his legal representatives works out to i 20,61,080/-

¶8Adding to the aforesaid pecuniary damages, non pecuniary damages of f, 10,000/- towards loss of consortium, t 5,000/- towards loss of estate, f 30,000/- for loss of love and affection and t 5,000/- towards funeral expenses, as awarded by the Tribunal, the total compensation payable to the claimants works out to il 21,11,0801- (including the compensation of f 4,05,2001-awardcd by the Tribunal till the date of the award and also including thc monthly installments already received by the claimants.) The claimants arc accordingly held entitled to receive thc sum of {21,11,080/- in all as MAC. APP. 260/2010 ancl MAC. APP. 3BnUl Page Il of 13 { compensation for the untimely demise of the deceased with intercst at the rate of 7 5% per annum from the date of filing of the petition till the date of realisation.

¶9Adverting now to the cross appeal filed by the rvidor,v of the deceased, the sole grievance raised in this appeal is that thc Tribunal has not awarded loss of dependency to the widow of the deccased. As can be seen from the award, the Tribunal observed that Smt. Divya Mishra, widow of the deceased was rvorking as a teacher in a school, which showed that she was not financially dependent upon thc deceased. The Tribunal, thus, held her not to be a dependent upon the deceased and did not apportion any part ofthe loss ofdependency in her favour.

¶10'Mr. Deepak Tyagi, the learned counsel for the appellant submits that the r,vidow of the deceased is the real victim rvho has to suffer a lot of financial loss apart from emotional distress during her entire iife and, therefore, at least one-third of the compensation ought to be awarded in her favour. I am in agreement with the learncd counsel for the appellant. In my opinion, the total compensation of f MAC. APP. 260/2010 and MAC. APP. 3032011 Poee 12 of13 v 21,11,0801-with the interest thereon has to be equally apportioned amongst the claimants in the ratio of one-third each. It is accordingly held that the appellant shall be entitled to one-third share of the ar.vard amount.

¶11It is apparent from the record that a sum of { 4,69,950/- has already been deposited by the Insurance Company rvith the Tribunal. The balance amount shall be deposited by it with the'fribunal within a period of one month from the date of the receipt of this order.

¶12Both the appeals stand disposed of in the above terms.

¶13The records of the Claims Tribunal be sent back. k-w,*rJ REVA KtrIETRAT'AI, (.ruDGE) April2l,20Ll MAC. APP. 260/2010 ond MAC. APP.3B(2UI Page 13 of13