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Judgment
J.R. Midha, J.—The appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 12,44,400/- has been awarded to claimants/respondents No. 1 to 7.
The accident dated 24th November, 2004 resulted in the death of Khem Singh. The deceased was survived by his widow and six daughters who filed the claim petition before the learned Tribunal.
The deceased was aged 47 years at the time of the accident and was working as Room Attendant with the Delhi High Court drawing a salary of Rs. 9,200/-. The learned Tribunal added 50% towards future prospects, deducted 1/3rd towards personal expenses and applied the multiplier of 11 to compute the loss of dependency at Rs. 12,14,400/-. Rs. 20,000/- has been awarded towards loss of consortium and Rs. 10,000/- towards funeral expenses. The total compensation awarded is Rs. 12,44,400/-.
The amount awarded by the learned Tribunal is on a lower side. According to the recent judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the appropriate multiplier at the age of 47 years is 13 and the appropriate deduction towards the personal expenses of the deceased who has left behind more than six dependants is 1/5th. The learned Tribunal has also not awarded any compensation towards loss of love and affection and loss of estate.
Following the aforesaid judgment of the Hon''ble Supreme Court, the claimants are entitled to compensation of Rs. 14,92,608/- [(Rs. 9,200 + 30% of Rs. 9,200) x 4/5 x 12 x 13]. However, the claimants have not filed any cross-objections even after being pointed out on the last date of hearing. The learned Counsel for the claimants submit that they are not interested to seek any enhancement in the award amount.
The learned Counsel for the appellant has challenged the impugned award on the short ground that the negligence of the driver of the offending vehicle has not been proved.
The appellant has not taken over the defence of the driver and owner of the offending vehicle u/s 170 of the Motor Vehicles Act. The learned Counsel for the appellant submits that permission u/s 170 of the Motor Vehicles Act is not required to challenge the findings of negligence.
It is well settled that in the absence of having taken over the defence u/s 170 of the Motor Vehicles Act, the Insurance Company cannot challenge the award on any ground except those mentioned in Section 149(2) of the Motor Vehicles Act. Reference in this regard be made to the judgment of the Hon''ble Supreme Court in the case of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, and Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, where it has been held that in the absence of defence as envisaged u/s 170 of the Motor Vehicles Act being taken over by the insurance company, the appeal filed by the insurance company is not maintainable.
Notwithstanding the bar of Section 170 of the Motor Vehicles Act, the appellant has no case on merits. The deceased was crossing the road when he was hit by the offending vehicle. The driver of the offending vehicle was prosecuted u/s 279/304-A and the charge-sheet was filed against him. Although the driver of the offending vehicle did not appear in the witness box, the claimants placed on record the certified copies of FIR, site plan, seizure memo, mechanical inspection report, postmortem report and the charge-sheet which clearly point out to the negligence of the driver of the offending vehicle.
The learned Counsel for the appellant submits that the said documents have not been proved in accordance with law. Section 168 of the Motor Vehicles Act provides that the Tribunal shall conduct an inquiry and for conducting such an inquiry, the learned Tribunal shall follow such summary procedure as it thinks fit. The perusal of the award shows that the learned Tribunal has conducted an inquiry in a meaningful manner and has arrived at the finding of negligence. Even otherwise, this is a case of res ipsa loquitur where the negligence is clear from the documents on record.
For all the aforesaid reasons, the appeal is dismissed.
The appellant has paid the entire award amount which has been received by the claimants. In that view of the matter, the statutory amount of Rs. 25,000/- be refunded back to the appellant within a period of four weeks.
Copy of this order be given ''Dasti'' to learned Counsel for the parties under signature of Court Master.