Icici Lombard General Insurance Co.Ltd v. Mala Devi & Ors

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.409 of 2008 % Judgment reserved on: 28th July, 2008 Judgment delivered on: 8th August, 2008 ICICI Lombard General Insurance Co.Ltd. 5th Floor, Birla Tower, 25, Barakhambha Road, Connaught Place, New Delhi. ….Appellant Through: Mr.Pankaj Seth, Adv. Versus 1) Smt.Mala Devi, W/o Sh.OM Prakash Mehra 2) Sh. Om Prakash Mehra, S/o Sh.Ram Chander, Respondents No.1 and 2, R/o 2936, Kahar Mohalla, Nasirabad, Distt. Ajmer (Raj.) Also at: H.No.9310, Bhagat Singh Gali, Library Road, Delhi. 3) Sh.Pradeep Kumar, S/o Sh.Mohinder Singh, R/o House No.342, Rithala Road, Village Post Shahabad Daulatpur, Delhi-42. 4) Sh. Naresh, S/o Sh.Raj Singh, R/o 135, Shahbad Daulatpur, Delhi-42. …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 the Motor Vehicles Act, 1988 (for short as the "Act") has been filed by the Appellant/Insurance Company against the award dated 25.03.08 passed by Ms. Neena Bansal Krishna, Judge, Motor Accident Claims Tribunal (for short as the "Tribunal"), Delhi. 2. Brief facts of the case are that on 30.06.07 at about 11.15 p.m., the deceased Chintoo along with his brother Vicky and father were going towards Teliwara Subzi Mandi Chowk Mor, Azad Market when a delivery Van (Vikram) bearing no. DL-1-LH-5397 came for the side of Teliwara, at high speed and took sharp U turn because of which the vehicle could not be controlled. It over turned and fell over the deceased Chintoo and his brother Vicky. The deceased Chintoo expired in this accident. 3. The claim petition filed by the parents of the deceased Chintoo aginst the Respondent no.3 herein, driver, Respondent no.4 herein, owner of the offending vehicle and Appellant herein, as the offending vehicle is insured with them. 4. Vide impugned judgment, the Tribunal awarded compensation of Rs.2,80,000/- along with the interest @ 7.5% from the date of institution of the petition till the date of its payment payable by all the Respondents to the claimants. 5. It has been contended by the Ld. Counsel for Appellant that the tribunal has erred in considering the future increase in the earning of the deceased despite the fact that the deceased at the time of accident was aged 12 years and was a student and was not working and earning. The Tribunal has also erred in law in presuming that the Second Schedule of the Act had become effective in the year 1994 and considering that there has been about 300% increase in the price index since 1994 to 2006 and considering the inflationary trends and rise in price index, it would not be unreasonable to assume that the notional income of the deceased would now be Rs.30,000/- p.a. whereas in the Second Schedule, the notional income has been shown as Rs.15,000/- p.a. 6. Ld. Counsel for the Appellant has relied upon the decision of the Apex Court in Kaushlya Devi v. Shri Karan Arora & Ors., 2007 (7) SCALE 517 in support of its contentions. 7. The claimant Sh. Om Prakash deposed that the deceased Chintoo was 12 years old at the time of accident, and is survived by his father and mother and was not working. In the postmortem report, the age of Chintoo is shown as 12 years. Thus, the age of the deceased has been taken to be 12 years. 8. Thus, the Tribunal held; "The petitioner has deposed that his child was 12 years old at the time of his death and was not employed. In such circumstances, notional income of deceased may be held as Rs.15,000/- per annum as has been provided in the II Schedule. The II Schedule had become effective in the year 1994. Considering that there has been about 300% increase in the price index since 1994-2006 and considering inflationary trends and rise in price index, it would not be unreasonable to assume that the notional income of the decea