Bajaj Allianz General Insurance Co.Ltd v. Seema Devi & Ors

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC APPEAL No.276/2008 & CM No.6284/2008 % Judgment reserved on: 30th April, 2008 Judgment delivered on: 7th May, 2008 Bajaj Allianz General Insurance Co. Ltd. C-31/32, Ist Floor, Connaught Place, New Delhi. …Appellant Through:Mr.Pankaj Seth, Adv. Versus 1.Smt. Seema Devi W/o Late Shri Anjani Jha, 2.Om Prakash, S/o Late Shri Anjani Jha, 3.Smt.Rama Kesi Devi, W/o late Shri Mahinder Jha, Respondent No.2 being represented through Respondent No.1-mother and natural guardian. Respondents 1 to 3 R/o Village Somnaha Ojha Tola, PS Chakmahsi, Distt.Samstipur, Bihar 4. Shri Pushpender Pal Khanna, R/o A-126, Narang Colony, Janakpuri, New Delhi. …Respondents Through: Nemo. 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. The present appeal under Section 173 of Motor Vehicles Act, 1988 (for short as "Act") has been filed against the order dated 08.01.08, passed by Sh. V.K. Maheshwari, Judge, Motor Accident Claims Tribunal (for short as "Tribunal"), New Delhi. 2. In a nutshell, the facts relevant for the purpose of dealing with this appeal are that on 27.10.04 deceased, Sh. Anjani Jha as a pillion rider along with his friend namely, Rinku was coming from Delhi Cantt to R.K. Puram after finishing his work on a two wheeler scooter bearing no. DNN-6079 which was driven by deceased"s friend and he was sitting as a pillion rider. When they reached at Red Light of Sector 1 of R.K. Puram near Sangam Cinema, at that time a Toyata Qualis bearing no. DL-4C-R-2764 driven by its driver, respondent No.4 came from the side of Hyatt Hotel, in rash and negligent manner and hit their scooter. As a result thereof, the deceased and his friend fell down and sustained fatal injuries. Deceased was taken to Safdarjung Hospital, where he was declared as brought dead. 3. A petition seeking compensation was filed by the legal heirs of the deceased against the appellant herein and respondent no. 4 herein. 4. Vide impugned judgment, the Ld. Tribunal passed an award for a sum of Rs.7,22,400/- along with interest @ 7% per annum from the date of filing of the petition till realization in favour of respondents no. 1 to 3 herein. 5. It has been contended by Ld. Counsel for the Appellant that in absence of any proof of income or earning of the deceased, the Tribunal erred in taking into consideration the minimum wages prevailing in the year 2007 of unskilled labourer for the purpose of calculating the average earning of the deceased at Rs.3,182/- per month when in the year of accident, the minimum wages of unskilled labourer was Rs.2,894/- p.m. It is further submitted that the Tribunal has proceeded with the wrong assumption that since the deceased was 38 years old at the time of accidental death, he had to live about 32 years more as the normal span of life in this part of the country is 70 years, as the Tribunal failed to take into consideration the uncertainty of one"s life. The deceased was 38 years old, therefore, the multiplier of 12 should be adopted. The future increase in earning has wrongly been taken into consideration, when there is no evidence to this effect. 6. Ld. Counsel for the appellant has also relied upon Bijoy Kumar Dugar v. Bidya Dhar Dutta and Others, (2006) 3 Supreme Court Cases 242 and The Managing Director, TNSTC v. Sripriya & Ors., 2007 (4) Scale 22 in support of its contentions. 7. In Bijoy Kumar Dugar (Supra) the Apex Court has observed; "It is by now well-settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of