CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD vs KRISHAN CHANDER AND OTHERS

2024-02-27 Information

$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th February, 2024
+ MAC.APP. 127/2024, CM APPL. 11758/2024
CHOLAMANDALAM MS GENERAL INSURANCE CO.
LTD ….. Appellant
Through: Ms. Suman Bagga & Mr.
Pankaj Gupta, Advs.
versus
KRISHAN CHANDER AND OTHERS ….. Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
CM APPL. 11759/2024 (exemption)

1. Allowed, subject to all just exceptions.
2. Application stands disposed of.

CM APPL. 11760/2024 (delay in filing)

3. This is an application filed by the applicant/appellant seeking
condonation of 56 days delay in filing the present appeal. However,
the statutory amount of Rs.25,000/- for filing the appeal has not been
deposited.
4. The delay of 56 days in filing the appeal is condoned, subject to
the appellant/Insurance Company filing a statutory amount of
Rs.25,000/- with the Registry of this Court within one month from
today.
5. The application stands disposed of.

MAC.APP. 127/2024

6. By way of the present appeal preferred under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to as the Act), the
appellant/Insurance Company is assailing the impugned judgment-
cum-award dated 26.09.2023 passed by the learned Presiding Officer,
MACT-01, South-West District, Dwarka Courts, New Delhi in MACT
No.2296/2016 titled as Krishna Chandra v. Neeraj Kumar & Ors..
7. Learned counsel appearing for the appellant/Insurance
Company fairly conceded at the Bar that the appellant/Insurance
Company is challenging the quantum of compensation awarded by the
learned Tribunal to the extent that although the deceased was 21 years
of age and was pursuing a course in Bachelor of Dental Surgery
(BDS), the learned Tribunal erroneously assessed the monthly income
of the deceased to be Rs.25,000/- per month without any basis or
evidence and added 40% towards loss of future prospects and
deducted ½ towards personal and living expenses and has awarded an
exorbitant amount of compensation of Rs.37,80,000/- to the
claimants/parents of the deceased.
8. Having heard the learned counsel for the appellant/Insurance
Company and on perusal of the record, evidently, as per the Secondary
School Examination record of the deceased/Kuldeep Kumar (Ex. PW-
1/4), his date of birth was 08.08.1995 and therefore, as the accident
occurred on 30.09.2016, the age of the deceased was rightly reckoned
to be 21 years at the time of his death. As regards the income and
profession of the deceased, it would be relevant to reproduce the
reasons that prevailed in the mind of the learned Tribunal, which read

as under:

11. INCOME AND PROFESSION
In the instant case, PW01-Krishan Chandra deposed that at the
time of accident, his deceased son was student of Pandit Bhagwat
Dayal Sharma, University of Health Sciences, Rohtak and was
doing the course of Bachelor of Dental Surgery (BDS) vide Regn
No. 13-PDM-99 and was in fourth years of his BDS course.
Furthermore, PW03-Dr. Mandeep Singh Virdi, Dean and Principal
PDM Dental College and Research Institute, Bahadurgarh,
Haryana also deposed that he was DEAN of the Dental College in
which deceased-Kuldeep Kumar was studying.
In 2016, the deceased was in fourth year of BDS Course. He had
brought that day copy of his I-Card Ex. PW3/l, copies of his
statements of. Marks for first year, second year and third year
which were Ex. PW3/2 ( colly ), copy of bonafide certificate
regarding his being student Ex. PW3/3, copies of fee receipts for
first year, second year, third year and fourth year dated
17.08.2013, 28.06.2014, 06.07.2016 and 04.07.2016 were
respectively EX. PW3/4. The student was above average as he
assessed on the basis of marks obtained by him in first year,
second year and third year. In Dental Colleges MNC were not
coming for seeking/giving placement.
It is relevant to pen down here that nothing came to record which
sake the credibility of PW03-Dr. Mandeep Singh Virdi on this
spect.
It is worthwhile to mention here that the Hon’ble Supreme Court in
its recent judgement in Chandra @ Chanda @ Chandraram Vs
Mukesh Kumar Yadav & Ors (Civil Appeal No. 6152/2021) held as
below:

10. It is the specific case of the claimants that the
deceased was possessing heavy vehicle driving license and
was earning Rs.15000/-per month. Possessing such license
and driving of heavy vehicle on the date of accident is
proved from the evidence on record. Though the wife of the
deceased has categorically deposed as AW1 that her
husband Shivpal was earning Rs.l5000/-per month, same
was not considered only on the ground that salary
certificate was not filed. The Tribunal has fixed the monthly
income of the deceased by adopting minimum wage notified
for the skilled labour in the year 2016. In absence of salary
certificate the minimum wage notification can be a
yardstick but at the same time cannot be an absolute one to

fix the income of the deceased. In absence of documentary
evidence on record some amount of guesswork is required
to be done. But at the same time the guesswork for
assessing the income of the deceased should not be totally
detached from reality. Merely because claimants were
unable to produce documentary evidence to show the
monthly income of Shivpal, same does not justify adoption
of lowest tier of minimum wage while computing the
income. There is no reason to discard the oral evidence of
the wife of the deceased who has deposed that late Shivpal
was earning around Rs.l5000/per month. In the case
ofMinu Rout & Anr. v. Satya Pradyumna Mohapatra &
Ors. this Court while dealing with the claim relating to an
accident which occurred on 08.11.2004 has taken the
salary of the driver of light motor vehicle at Rs.6000/-per
month. In this case the accident was on 27.02.2016 and it is
clearly proved that the deceased was in possession of heavy
vehicle driving licence and was driving such vehicle on the
day of accident. Keeping in mind the enormous growth of
vehicle population and demand for good drivers and by
considering oral evidence on record we may take the
income of the deceased at Rs.8000/-per month for the
purpose of loss of dependency.
In light of above and keeping in view of fact and circumstances of
the case, the Tribunal considers the notional income of the
deceased-Sh. Kuldeep Kumar as Rs. 25,000/- per month.

Further, in terms of the principles laid down in National
Insurance Company Ltd., vs. Pranay Sethi1 the deceased would
also have future prospects @ 40% as he was 21 years of age at the
time of accident.

1 2017 (16) SCC 680

9. On a careful perusal of the aforesaid observation, this Court is
unable to find any illegality, perversity or incorrect approach adopted
by the learned Tribunal. The deceased was pursuing his education and
his notional income should be assumed to be something more than
what is provided as the minimum wages for a skilled workman.
Needless to say, the deceased in all probability, was going to have a

promising career, which was cut short due to the accident. As a matter
of fact, learned Tribunal has been very conservative in its approach in
assuming the notional income of the deceased @ Rs.25,000/-.
Reference in this regard can be made to the decisions in Ashvinbhai
Jayantilal Modi v. Ramkaran Ramchandra Sharma2 and S.
Vasanthi v. M/s. Adhiparasakthi Engg. College3
10. The learned Tribunal rightly deducted ½ towards personal use
and financial consumption of the deceased since the claimant/father
has been gainfully employed and it rightly applied the future prospects
@ 40% besides applying the multiplier of 18 and the total loss of
financial dependency assessed to the tune of Rs.37,80,000/- is without
any blemish. As regards the compensation amount towards loss of
estate, funeral expenses and loss of consortium is concerned, the same
have been assessed in terms of the parameters laid down in the case of
Pranay Sethi (supra). Thus, the total amount of compensation is
arrived as under:

2 (2015) 2 SCC 180
3 2022 INSC 1062

S.No.

Head

Amount

Loss of dependency

Rs.37,80,000/-

Funeral expenses

Rs.15,000/-

Loss of estate

Rs.15,000/

Loss of consortium

Rs.40,000/

TOTAL

Rs.38,50,000/-

11. No other ground for challenge has been advanced nor reflected

from the instant appeal. Accordingly, the present appeal is dismissed
in limine.
12. The appellant/Insurance Company is directed to deposit the
entire amount of compensation with accrued interest thereon, with the
learned Tribunal within two weeks from today failing which, the
appellant/Insurance Company shall be liable to pay future interest @
15% p.a. from the date of this judgment till realization. Since the
appeal has been filed without complying with the pre-condition for a
deposit of Rs.25,000/-, the same be deposited within one month from
today with the Registrar General of this Court, which shall be paid to
the respondents/parents of the deceased. In case of any failure by the
appellant/Insurance Company to deposit the said amount, the
appellant/Insurance Company shall be liable to pay interest @ 15%
p.a. from the date of default till realization.
13. This order is passed without prejudice to the rights and
contentions of the claimant.
14. The pending application also stands disposed of.
15. Copy of this order be sent to the learned Tribunal for
information and necessary compliance.

DHARMESH SHARMA, J
FEBRUARY 27, 2024/ck