National Insurance Co. Ltd. vs Aasma Praveen and Others

G. P. Mittal, J.—The Appeal is for reduction of compensation of Rs. 5,20,000/- awarded in a petition u/s 163A for the death of Hidayat Khan, who expired in an accident arising out of the use of the motor vehicle i.e. maruti van bearing registration No.DL5CC 5540. There is twin challenge to the compensation awarded. It is urged that the deceased was working as a driver of maruti van with the owner. The salary of a skilled worker on the date of the accident was Rs. 2,948/-. Thus, the deceased''s income ought to have been taken as Rs. 3,000/- per month i.e. Rs. 36,000/- per annum instead of Rs. 40,000/- per annum taken by the Claims Tribunal. It is contended that the award of non-pecuniary damages to the tune of Rs. 40,000/- is not in consonance with the Second Schedule which prescribes a sum of Rs. 9,500/- in all towards non-pecuniary damages in case of the death of a married person.

There is no dispute about the proposition of law. It is well settled that in a Claim Petition u/s 163A of the Act, the compensation has to be awarded as per the structured formula given in the Second Schedule appended to the Motor Vehicles Act. This Court in New India Assurance Co. Ltd. v. Pitamber & Ors., MAC APP. No.304/2009 decided on 23.01.2012 noticed the divergence of opinion in the judgment of this Court in Oriental Insurance Company Limited v. Smt. Pataso & Ors., MAC APP.962/2005 decided on 01.09.2008; Oriental Insurance Company Limited v. Om Prakash & Ors., 1 (2009) ACC 148; Jagdish & Anr. v. Madhav Raj Mishra and Anr. MAC APP.190/2011 decided on 19.04.2011; and Oriental Insurance Company Limited v. Anita Devi & Ors., 2011 (5) AD (Delhi) 138, and relying on the Supreme Court judgments in The Oriental Insurance Co. Ltd. etc. Vs. Hansrajbhai V.Kodala and Others etc. etc., Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, and The Oriental Insurance Company Limited Vs. Meena Variyal and Others, held that the judgment of this Court in Anita Devi & Ors. (supra) is in consistence with the law laid down in Kodala and Deepal Girishbhai Soni (supra) and that the compensation u/s 163A can be awarded only on the basis of the structured formula.

Although, the minimum wages of a skilled worker on the date of the accident was about Rs. 3,000/-, since it was established before the Claims Tribunal that the deceased was working as a driver with the owner of maruti van, therefore his income could have been assumed to be Rs. 40,000/- per annum or about Rs. 3,300/- per month. There is no fault in awarding a compensation of Rs. 4,80,000/- towards the loss of dependency. The Second Schedule provides for a compensation of Rs. 5,000/- towards loss of consortium, Rs. 2,500/- towards loss to estate and Rs. 2,000/- towards funeral expenses. Thus, the Claimants were entitled to a sum of Rs. 9,500/- only towards the non-pecuniary damages.

The compensation, therefore, stands reduced from Rs. 5,20,000/- to Rs. 4,89,500/-.

The Appellant Insurance Company shall be entitled to refund of excess amount of Rs. 30,500/- along with the proportionate interest and the interest earned during the pendency of the Appeal.

The compensation of Rs. 4,89,500/- along with interest @ 8% per annum as awarded by the Claims Tribunal and the interest accrued during the pendency of the Appeal, if any, on this amount shall be disbursed to the Respondents No.1 to 4 in terms of the order passed by the Claims Tribunal.

The Appeal is allowed in above terms. The statutory amount of Rs. 25,000/- shall be refunded to the Appellant Insurance Company.