Ram Pal v. Manoj Kumar

V.B.GUPTA, J. rs/Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.66/2005 % Judgment reserved on: 23rd September, 2008 Judgment delivered on:17th October, 2008 1. Sh. Ram Pal S/o. Sh. Mangal, 2. Sh. Rakesh Kumar S/o. Sh. Ram Pal, 3. Ms. Neetu D/o. Sh. Ram Pal, All R/o. A-1142, Shahbad Diary Delhi. (Petitioner No.2 & 3 being minor through Their Father and Natural Guardian PetitioneNo.1) ….Appellants Through: Mr. S.N. Parashar, Adv. Versus 1. Deleted. 2. Sh. Sunil Kumar S/o. Sh. Prithvi Rai, R/o. WZ-312-B, Rishi Nagar, Rani Bagh, Delhi. 3. The National Insurance Company Ltd., Jeevan Bharti Building, Connaught Place, New Delhi. 4. Smt. Renu W/o. Sh. Dinesh Kumar, R/o. Village Bihampur, Distt. Lucknow, U.P. …Respondents Through: Ms. Shantha Devi Raman, Adv. for R-3. 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 appellants, who are claimants in this case, have filed the present appeal under Section 173 of Motor Vehicles Act, 1988, for enhancement of compensation as awarded by Ms. Sujata Kohli, Judge, MACT (for short as "Tribunal") vide judgment dated 27th April, 2004. 2. Brief facts of this case are that on 14th August, 2001, at about 5.45 p.m., deceased Smt. Kanti was standing at road side at Shiv Vihar Colony, at Main Bawana Road, Delhi, intending to cross the road, when a Tempo bearing No. DL-IL-7664 being driven allegedly at a very high speed, in a rash and negligent manner came from Shahbad Village side and hit the deceased, as a result thereof, the deceased fell down and sustained grievous injuries. Later on, deceased succumbed to her injuries. 3. The Tempo was being driven by respondent No.1/Manoj Kumar and it is owned by respondent No.2/Sunil Kumar and insured with respondent No.3/National Insurance Company. 4. Vide order dated 8th July, 2002, passed by the Tribunal, respondent No.1 i.e. the driver of the offending vehicle was given up by the counsel for the claimant and as such name of respondent No.1 was deleted from the array of the claim petition. 5. Respondent No.2/Sunil Kumar, the owner was duly served but did not appear and as such he was proceeded ex-parte. 6. Respondent No.3/Insurance Company in its written statement has admitted the fact that the vehicle in question was insured with it. However, it is stated that the vehicle was being driven by a person without permission or authority of the insured and it was being used contrary to the terms of the insurance policy and was being driven by its driver without holding a proper and valid driving licence. Therefore, the petition is liable to be dismissed. 7. Vide impugned judgment, the Tribunal awarded compensation to the tune of Rs.1,55,000/- along with interest @ 12% p.a. w.e.f. the date of filing of the petition till 31st December, 2001 and thereafter @ 9% p.a. till the date of judgment. 8. It has been contended by the counsel for appellant that the deceased was a labourer and was earning Rs.3,000/- per month. Beside this, she was looking after the entire household work. The testimony of the husband of deceased remained unrebutted and under these circumstances the Tribunal has not considered the income of the deceased properly and has taken notional income at the time of assessment of compensation. 9. Further, the Tribunal adopted a multiplier of 10 only despite the fact that the deceased was 35 years of age at the time of her demise. Thus, the Tribunal ought to have taken the multiplier of 17 as prescribed under the Second Schedule of the Act. The Tribunal without any legal basis has adopted the multiplier of 10 which is against the settled principles of law. 10. Other contention is that the Tribunal has failed to consider future prospects of the deceased. 11. Lastly, the Tribunal has awarded only a meager sum of Rs.5,000/- towards funeral expenses. 12. Learned counsel for the appellant has a