National Insurance Co. Ltd v. Shishpal and Ors

J U D G M E N T (oral)

¶1The present Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the Appellant/Insurance Company against the Award dated 27.03.2024 vide which compensation in the sum of Rs.

34,97,760/- along with interest @ 8% per annum has been granted to the Respondent Nos. 3 to 8/Claimants, who are the wife, children, mother and sister of Shri Karan (hereinafter referred to as "deceased"), who died in the road accident which took place on 31.12.2022,.

¶2The main grounds of challenge are: -

(i) that as per the Driving Licence of deceased, his date of birth is

01.01.1977 which implies that he was 45 years old at the time of accident, but his age has been wrongly taken as 36 years;

(ii) that the Minimum Wages of Delhi have been taken, when in fact, there is no proof of deceased working in Delhi; the Minimum Wages of Unskilled Worker of Uttar Pradesh should have been taken;

(iii) that the Loss of Consortium has been incorrectly granted to the Respondent No. 8/Sister; and

(iv) that the interest @ 8% p.a. is on the higher side.

¶3Learned counsel for the Respondent Nos. 3 to 8/Claimants submits that the witnesses examined on behalf of the Respondent Nos. 3 to 8/Claimants had deposed about the deceased's place of work as Delhi and also about his earnings, which has been rightly considered by the Tribunal. Moreover, the Aadhar Card of the deceased reflects his date of birth as

01.01.1987 and on that basis, the age of the deceased has been rightly taken as 36 years.

¶4Learned counsel for the Respondent Nos. 3 to 8/Claimants further submits that the interest rate @ 8% is also optimum and no revision in the compensation, is merited. Therefore, it is submitted that the Appeal is liable to be dismissed.

¶5Submissions heard and the record perused.

¶6Briefly stated, on 31.12.2022, the deceased, who was working as cleaner/labour on a truck, went with that truck to get bricks and were on their way back to Delhi with bricks loaded in the Truck. At about 11:15 p.m., they parked the truck at UP Petrol Pump for filling CNG. In the meantime, the Respondent No. 1/Driver of the offending vehicle bearing No. UP-17T-0351, without taking precautions and without seeing the rear view mirror, reversed the offending vehicle in a rash and negligent manner and struck the deceased who was standing behind, who sustained grievous injuries and succumbed to the injuries.

¶7An FIR bearing No. 03/2023 under Sections 279/304A of the Indian Penal Code, 1860 was registered at Police Station Jyoti Nagar, Delhi. After due investigations, the Chargesheet was filed before the concerned learned Metropolitan Magistrate and the Detailed Accident Report /Claim Petition was filed before the learned Claim Tribunal.

¶8The learned Claim Tribunal, after considering the evidence on record, granted compensation in the sum of Rs. 34,97,760/- along with interest @ 8% per annum to the Respondent Nos. 3 to 8/Claimants, vide Award dated

27.03.2024. Age of the Deceased:-

¶9The first ground of challenge to the impugned Award by the Appellant/Insurance Company is that the age of the deceased was 45 years and not 36 years, as has been taken by the learned Claim Tribunal.

¶10Pertinently, the Driving Licence of the deceased shows his date of birth as 01.01.1977. Though the learned Claim Tribunal has relied upon the

Aadhar Card of the deceased which indicates his date of birth as 01.01.1987, but it is pertinent to observe that the age of Respondent No. 3/Wife of deceased has been shown as 01.01.1984 and the age of eldest child, Respondent No. 4/Shiva, has been shown to be born on 28.06.2008.

¶11Even though the date of birth of the deceased as 01.01.1987 on the basis of Aadhar Card, it cannot be overlooked that the age mentioned on the Driving Licence of the deceased as 01.01.1977 is more authentic as on the basis of the same, he became eligible to get a Driving Licence.

¶12Therefore, the age of the deceased is proved to be 01.01.1977, which means the deceased was 45 years, 11 months old and 30 days at the time of accident which took place on 31.12.2022.

¶13Accordingly, the Multiplier of 15 taken by the learned Claim Tribunal is revised and modified to 14. Minimum Wages of Uttar Pradesh:-

¶14The second ground of challenge to the impugned by the Appellant/Insurance Company is that the Minimum Wages of Uttar Pradesh for Unskilled Worker should have been taken instead of the Minimum Wages for the Unskilled Worker of Delhi.

¶15The Respondent No. 3/Manju as PW1, had deposed that her husband, deceased, was working as a Cleaner-cum-Helper on the truck. However, nowhere in her Affidavit of evidence has she stated that she was a resident of Delhi or that her husband, was working in Delhi.

¶16Pertinently, the deceased was working on the Truck bearing No. UP-17T-0351, which again reflects that the truck was registered in Uttar Pradesh. All the Respondent Nos. 3 to 8/Claimants are the resident of Uttar

Pradesh. Nowhere in their Affidavit of evidence or otherwise, any document has been placed on record to show that the deceased was the resident of Delhi. So much so, not even the address of Delhi has been reflected in any of the documents and statements of the parties.

¶17PW3/Alok Goyal, the Employer of deceased, had deposed that the deceased was resident of Baghpat, Uttar Pradesh and was working on his truck to whom he was paying a sum of Rs. 500/- per day. PW3/Alok Goyal at no place had deposed that the deceased was employed in Delhi.

¶18In this context, learned counsel for the Appellant/Insurance Company has referred to his admissions in cross-examination that he was not working as a Driver, but was sitting as a gratuitous passenger. However, in the next sentence, PW3/Alok Goyal states that the deceased was on duty on the date of accident.

¶19The overwhelming evidence on record leads only to one conclusion that the deceased was working as a Labour on the truck owned by PW3/Alok Goyal resident of Baghpat, Uttar Pradesh and was employed in Baghpat, Uttar Pradesh.

¶20Accordingly, the Minimum Wages for Unskilled Worker of Uttar Pradesh are hereby taken which is Rs. 9,743/-p.m. Loss of Consortium to the Sister:-

¶21The third ground of challenge to the impugned Award by the Appellant/Insurance Company is that the Loss of Consortium has been given to the Respondent No. 8/Savita, who is the unmarried sister of deceased, which has been incorrectly awarded to her in view of the decision of the Apex Court in Magma General Insurance Co. Ltd. vs. Nanu Ram & Ors.,

(2018) 18 SCC 180, wherein the Apex Court has defined the terms consortium to only include, spousal consortium, parental consortium and filial consortium, but did not include siblings. The Respondent No. 8/Savita, sister, does not come in any way of these three categories and the Loss of Consortium could not have been awarded to her.

¶22It must not be overlooked that these are the proceedings for assessing fair compensation for the family members of the person who has died in the accident. It is on record that the Respondent No. 8/Savita, sister, was unmarried and was living with the deceased. In these circumstances, it is clearly reflected that the Respondent No. 8/Savita was dependent upon the deceased.

¶23Therefore, the Loss of Consortium has been rightly granted to her by the learned Claim Tribunal. Accordingly, this aspect of challenge does not warrant any interference. Rate of Interest:-

¶24The fourth ground of challenge to the impugned Award by the Appellant/Insurance Company is that the interest @ 8% per annum awarded by the learned Claim Tribunal is on the higher side.

¶25However, considering the prevailing rate of interest and that the accident took place on 31.12.2022, the rate of interest @ 8% per annum granted by the learned Claim Tribunal, cannot be said to be excessive. Accordingly, this aspect of challenge does not warrant any interference. Conclusion:-

¶26In view of above, the compensation is recalculated as under: - S. No. Head Amount Awarded/Modified

awarded by Tribunal by this Court

¶1Monthly income of deceased (A) Rs. 16,792/-Rs. 9,743/-

¶2Add future prospects @ 40% (B) Rs. 6,717/-Rs. 3,898/-

¶3Less 1/4th towards personal and living expenses of deceased (C) Rs.5,877/-Rs. 3,411/-

¶4Monthly loss of dependency (A+B-C)=D Rs. 17,632/-Rs. 10,230/-

¶5Annual loss of dependency (Dx12) Rs. 2,11,584/-Rs. 1,22,760/-

¶6Multiplier (E)

¶7Total loss of dependency (Dx12xE=F) Rs. 31,73,760/-Rs. 17,18,640/-

¶8Compensation for loss of Consortium (48,000 x 6)

(G) Rs. 2,88,000/-Rs. 2,88,000/-

(same)

¶9Compensation for loss of estate (H) Rs. 18,000/-Rs. 18,000/-

(same)

¶10Compensation for funeral expenses (I) Rs. 18,000/-Rs. 18,000/-

(same) TOTAL COPMENSATION (F+G+H+I) Rs. 34,97,760/-Rs. 20,42,640/-

¶27The total compensation of Rs. 20,42,640/- be paid along with interest @ 8% per annum to the Respondent Nos. 3 to 8/Claimants in terms of the Award dated 27.03.2024. In case there is a surplus amount deposited by the Appellant/Insurance Company, the same be released to it along with corresponding interest.

¶28The statutory amount, if any, be returned to the Appellant/Insurance Company.

¶29Accordingly, the Appeal along with pending Applications is hereby disposed, of in the above terms.

(NEENA BANSAL KRISHNA)

JUDGE DECEMBER 20, 2024 S.Sharma

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 20th December, 2024 + MAC.APP. 401/2024 & CM APPLs. 44115/2024, 73926/2024 NATIONAL INSURANCE CO. LTD. National Legal Vertical, 2E/9, Jhandewalan Extension, Delhi-110055 Also at: - Shop No.B-13, Yuvraj BSNL Exchange, G.T. Road, Ghaziabad, U.P. .....Appellant Through: Mr. Himanshu Bhushan, Advocate through VC. versus 1. SHISHPAL (DRIVER) S/o Shri Jai Prakash, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 1 2. ALOK KUMAR GOYAL (OWNER) S/o Shri Ashok Kumar Goyal, R/o H-19, West Jyoti Nagar, New Delhi-110094 .....Respondent No. 2 3. MANJU W/o Late Shri Karan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 3 4. SHIVA S/o Late Shri Karan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 4 5. PRINS S/o Late Shri Karan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 5 6. PRITI D/o Late Shri Karan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 6 7. FOOLVATI W/o Late Shri Jai Bhagwan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 7 8. SAVITA D/o Late Shri Jai Bhagwan, R/o Village Hasanpur Mansoori, District Baghpat, U.P. .....Respondent No. 8 Through: Ms. Archana Verma & Mr. Amit Sharma, Advocates for R-3 to 8. CORAM: HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA