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28 Dec

The Bombay HC Allows The Appeal Partially Regarding The Tribunal’s Order Of The Compensation Amount

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Blog #accident, #BOMBAY HIGH COURT, #compensation, #First Appeal, #tribunal

TITLE: National Insurance Co. Ltd. Vs Mrs. Lauretta Shashin Mogale And Ors.

CORAM: Hon’ble Justice Shivekumar Dige

DATE: 8th December, 2023.

CITATION: First Appeal No.1067 Of 2018

FACTS

On 26th July 2011, deceased Shashin Mogale was proceeding in his car bearing No. MH-14-CK-7387, he was on the way to his house. At that time, at about 1.55 am., a tanker bearing registration No.KA-01-C/2284 came from the opposite direction in rash and negligent manner and gave dash to the car of the deceased. Respondent No.4 was driving the said tanker. The deceased was admitted in the hospital but he succumbed to injuries. On the basis of evidence on record, the Tribunal has considered the salary of deceased at Rs.98700/- per month including arrears.

This appeal is preferred by the appellant-Insurance Company against the judgment and award passed by Motor Accident Claims Tribunal, Pune. The claimants have filed cross-objection for enhancement of compensation. It is the contention of learned counsel for the appellant that while calculating compensation, the Tribunal has considered arrears of salary of the deceased and, on that basis, compensation is awarded, which is not proper. Learned counsel further submitted that the accident occurred due to contributory negligence of the deceased. In the post- mortem report, it is mentioned that there was smell of alcohol. It shows that deceased was under the influence of liquor but this fact is not considered by the Tribunal.

It is the contention of learned counsel for respondent Nos.1 to 3/claimants that the Tribunal has deducted 30% future prospects as income tax, which is not proper. Learned counsel further submitted that consortium amount is not properly awarded, it be awarded. The Chemical Analysis Report is received after the conclusion of the trial. It is produced on record, it does not show that at the time of accident deceased was under the influence of liquor.

LAWS INVOLVED:

304A Of Indian Penal Code: Causing Death By Negligence.

Workmen’s Compensation Act 1923

ISSUES:

Whether there is a case of Contributary Negligence?
Whether the compensation amount decide by the Tribunal was valid or not?

JUDGEMENT:

The Appeal is partly allowed as the Court has deducted arrears amount from salary of deceased as well as some allowance amount from the salary. The cross-objection is partly allowed. The claimants are entitled for enhanced amount of Rs. 1671227/- @ 7.5% interest per annum from the date of filing of claim petition till realisation of the amount. Out of this amount, Rs.1,80,000/- is consortium amount, the claimants are entitled for interest on this amount at 7.5% from 1st November 2017 till realisation of the same.

The appellant-Insurance Company shall deposit the enhanced amount along with accrued interest thereon within 8 weeks after the receipt of this order.

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Written by- Sanjana Ravichandran

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7 Dec

Compensation arising out of motor vehicle accident should be proportionate to the income of the deceased : Bombay HC

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Blog #bombayhc, #compensation, #JUSTICE, #law, #MVA

TITLE : The Divisional Controller, NEKSRTC v Smt. Sushila

CITATION : First Appeal No. 1180 of 2011

CORAM : Hon’ble justice Smt.Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase

DATE: 7^th December, 2023

INTRODUCTION :

The appeal is based on the judgement and award given by the Motor Accident claims Tribunal on 2011

FACTS :

A shrimant died in a car accident while his two wheeler was dashed by a KSRTC bus. It was alleged that the driver of the bus was negligent and rash along with being inexperienced. This incident took place in 2007. The respondent filed written statement and denied all the allegations. It has been contended that the claimants in collusion with police registered a false case against a driver of the respondent. According to the respondent, the deceased himself had lost the control over his vehicle as he was driving it recklessly and wanted to avoid a collision with jeep coming from opposite direction. The motor Accident claims held the respondent liable and ordered the respondent to pay Rs. 21,05,000 with 7.5% interest per annum. The appellant has appealed on the ground that the compensation is not enough considering the face that the deceased had an income of Rs.2,00,000 per month.

COURT’S ANALYSIS

The court held in the affirmative that the driver and the respondent is vicariously liable to pay compensation. The provisions in respect of Section 166 of the Motor Vehicles Act and other Sections are benevolent provisions and it is settled principle of law that, in such cases the Tribunal is bound to grant just compensation. It was found by the court and the tribunal that the monthly income of the deceased according to Income tax returns filed was Rs.1,48,920 only. The court dismissed the order and findings of the Tribunal and allowed the party to deserve more compensation.

Written by- Sanjana Ravichandran

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7 Nov

Penalty Is Supposed To Be @ 1% Of The Cost Of Incomplete Work Per Week Of Delay Subject To Maximum Of 10 % Of The Total Cost Of Contract: High Court Of Delhi

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blog #arbitration, #Breach, #compensation, #contract, #delay, #Reward

Title: National Projects Constructions Corporation Ltd. (Npcc) V M/S Aac India Pvt. Ltd

Citation: Fao (Comm) 140/2021

Coram: Hon’ble Mr. Justice Yashwant Varma And Hon’ble Mr. Justice Dharmesh Sharma

Decided On: November 02, 2023

Introduction:

This Judgment shall decide the present appeal preferred by the appellant under Section 37 of the Arbitration and Conciliation Act, 1996 read with Section 13(1A) of the Commercial Courts Act, 2015 for setting aside the impugned judgment dated 12 March 2021 passed by learned Additional District Judge-03, South District, Saket Courts, New Delhi in ARBTN No.20824/2016, whereby the learned ADJ chose to partially set aside the award dated 29 August 2016 on the aspect of liquidated damages to be paid by the appellant to the respondent.

Facts:

The appellant, which is a Government Enterprise under the Ministry of Water Resources and also a company registered under the Companies Act, 1956 consequent to letter of intent dated 03 March 2017 entered into an agreement dated 13 March 2007 as Project Management Consultant of the Central Reserve Police Force with the respondent, which was a micro enterprise stated to be having a turnover of less than Rs. 10 Lacs, for installation of Fire Protection System for the Auditorium Block, CRPF Campus, Vasant Kunj, New Delhi. The project was stipulated to be completed within a period of 7 months from the date of issuance of LOI for total contract value of Rs. 90,79,200/-. However, performance got delayed.

appellant claimed that the respondent was in breach of its obligations under the contract and delayed its performance by taking about 33 months for completion of work, and therefore, in terms of clause 35.5 of the contract, LD was levied and adjusted against the payment payable to the respondent not only for the abnormal delay but also for causing damage to the reputation of the appellant for the delay caused; and accordingly payment for a sum of Rs. 1,13,97,341/- i.e., 10% of the work cost of the CRPF camp project was withheld. The respondent in terms of clause 52 of the ̳General Conditions‘ of the contract invoked arbitration.

The award was challenged by the respondent/claimant under Section 34 of the A&C Act and the learned ADJ vide the impugned judgment dated 12 March 2021 considered the proposition of law propounded in ONGC Ltd. v. Saw Pipes Ltd. And several other cases.

The impugned award is assailed in the present appeal before this Court inter alia on the grounds that the learned ADJ completely misconstrued the letter dated 09 October 2009 on the record and placed an erroneous construction on the provisions of the contract; and that despite concluding that there was delay on the part of the claimant/respondent in completing the project, contradicted itself by not allowing imposition of LD and rather modified the award, which course has no sanction in law.

Court’s Analysis and Judgement:

The court decided that liquidated damages and penalty were stipulated to be @ 1% of the cost of incomplete work per week of delay subject to maximum of 10 % of the total cost of contract value and it was stipulated that LD may be adjusted and set off against any sum payable to the Contractor/NPCC. It is also manifest that the contract stipulated payment by CRPF to the appellant alone. The appellant was enjoined upon to verify the bills towards the work done received from the sub-contractors. As an inevitable corollary, on imposition of LD, the appellant was well within its rights to withhold 10% of the contract value in such proportion from each of the sub-contractors including the claimant/respondent.

There are a catena of cases on the proposition that where damage or loss is difficult or impossible to prove, the Court is empowered to award liquidated amount stipulated in the contract, if it is a genuine pre-estimate of damage or loss, or reasonable compensation for the said amount loss or damage. So there was no ̳patent illegality‘ committed by the Arbitrator in passing the impugned award and the award could not have been modified by the learned ADJ in exercise of his powers under Section 34 of the A&C Act.

Written by- Sushant Kumar Sharma

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6 Nov

The Compensation Rate Has To Be Evaluated Fairly Considering The Nature Of The Land, If Land Is Taken Under NHAI Act: High Court Of Allahabad

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blog #compensation, #Dispute, #Highway, #land, #Roads

Title: Chandra Kishori v Union Of India

Citation: Appeal Under Section 37 Of Arbitration And Conciliation Act 1996 No. – 55 And 56 Of 2022

Coram: Hon’ble Jaspreet Singh,J.

Decided On: 16.10.2023

Introduction:

Here both the appeals involve a common question of law and fact, hence both the appeals have been heard together and are being decided by this common judgment. For the sake of convenience, the Court referred to the facts as they emerge from Appeal No. 55 of 2022, however, the relevant facts relating to the other appeal was also considered at the appropriate place.

Facts:

The appellant, of the two appeals, are the land owners, whose land was acquired under the National Highway Authority of India Act, 1956 under Sections 3 A & 3 D of the NHAI Act, 1956. The land of appellants of both the appeals were made the subject matter of notification issued under Section 3-A of the NHAI Act, 1956 dated 28.05.2012 and notification under Section 3-D was made on 15.3.2013 for widening of Lucknow-Sultanpur Highway from km. 35.670 to 64.100. The competent authority passed its award in terms of Section 3-G of the NHAI Act, 1956 and awarded a sum of Rs. 6,98,923 to Chandra Kishori vide award dated 11.7.2016 and a sum of Rs. 6,18,051/- to Om Prakash vide award dated 31.07.2015.

Being aggrieved both Chandra Kishori and Om Prakash escalated the matter by invoking the provisions of Section 3-G (5) and (6) and referred the matter for arbitration. The Arbitrator in terms of his award dated 19.9.2019 passed in Case No. 1689 of 2017 relating to Chandra Kishori and in Case No. 1690 of 2017 relating to Om Prakash did not find favour with the contentions of the appellant, of the two appeals, for enhancement of compensation and consequently, rejected their claim.

The award passed was further challenged by filing a petition under Section 34 of the Arbitration & Conciliation Act, 1996 before the District Judge, Barabanki. Both the petitions under Section 34 of the Act of 1996 relating to both the appellant in the respective appeals, was rejected by the Additional District Judge.

The counsel for appellants in the two appeals has primarily raised two points for consideration. It is submitted that in the case of both the appellants the land in question had already been declared as non-agricultural in terms of Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, however, the competent authority had given the compensation treating it to be agricultural land. It is urged that once the land was declared as non-agricultural, the appellants were entitled to get compensation on the rates as applicable to non-agricultural land.

learned counsel appearing for National Highway Authority of India through video conferencing has submitted that mere change in the land use from agricultural to non-agricultural is not going to confer any benefit to the appellants inasmuch as on the date of acquisition the nature of the land as it stood on the revenue records, has to be seen. It is further submitted that even though the appellants may have got the land declared for non-agricultural purposes yet there was no material on record to suggest that any non-agricultural activities were being done.

Court’s Analysis and Judgement:

In the present case the court decided that the Arbitrator committed an error in failing to consider this aspect of the matter relating to the nature and status of land on the date of notification including ignoring the order passed by the SDM under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and it was the duty of the Arbitrator to have noticed the provisions and the manner in which the compensation is to be computed so that the land which has been taken away of the appellants, and they are directed to be appropriately compensated as per the provisions of law.

It was further found out that the Additional District Judge while considering the petition under Section 34 of the Arbitration & Conciliation Act, 1996 also erred in holding that it does not have the power to interfere with the award which requires re-calculation as it is apparent that the Additional District Judge did not apply the settled legal principles applicable and defining the realm of jurisdiction, the Court exercises, while adjudicating a petition under Section 34 of the Act of 1996.

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Written by: Sushant Kumar Sharma

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1 Nov

Just Because Death Under Employment Was Not Because Of Accident It Doesn’t Exempt One From Compensating The Deceased: High Court Of Kerala

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Blog #accident, #compensation, #employer, #employment, #heart attack, #insurance

Citation: MFA (ECC) No.136 of 2018

Decided On: 28TH DAY OF OCTOBER 2023

Coram: HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

Introduction:

This appeal is an appeal under Section 30 of the Employees Compensation Act, 1923. The appellants through the appeal assail the order of Employees Compensation Commissioner. The appellants are the widow and daughter of Sri.Vasu who died on 01.02.2006 due to an accident.

Facts:

The deceased husband of the appellant was driving taxi car bearing Registration No.KEH 9783 along the Swaraj Round, Thrissur on the said date. At about 12.15 p.m he felt chest pain and collapsed resulting in the car dashing against an electric post. He was rushed to the Aswini hospital, Thissur, but he succumbed to the injuries. The doctor who examined him informed that Sri.Vasu died due to heart attack.

The appellants filed a claim petition before the Employees Compensation Commissioner under the Employees Compensation Act claiming compensation from the 1st respondent, who is the owner of the vehicle and the 2nd respondent, the insurer. The 1st respondent did not chose to contest the matter. The 2nd respondent resisted the claim on several grounds. It was contended that the 1st respondent was not the owner having transferred the vehicle in favour of Sri.Vasu as early as on 17.03.2004. The further contention of the 2nd respondent was that the death was due to heart attack and not on account of an accident arising out of and in the course of the employment.

The appellant failed to discharge their initial burden that the death of Sri.Vasu was the result of an accident and in the course of his employment. In the light of that finding, other issues were not answered and the application was dismissed.

Court’s Analysis and Judgement:

The Apex Court in Param Pal Singh v. National Insurance Co. Ltd and another [2013 ACJ 526] considered a similar question. In the above case, it has come out that the deceased was driving cars for about 40 years. He was aged 60 years at the time of death. A person involved in the avocation of driving for such a long period suffered a heart attack while he was driving the car. The heart attack he suffered while driving had resulted in the accident of his car hitting an electric post. The proximate reason for the death may be heart attack. But, had he not suffered a heart attack, such an accident would not have happened. The view taken by the Apex court is that the employer was liable to compensate even if the deceased was not actually driving the truck. When in the course of his driving, he felt discomfort and later, in the hospital, he died due to heart disease, he being a driver for long years subjected to its stress and strain, the death would amount an accident arising out of and in the course of his employment.

Accordingly, the order of the Employees Compensation Commissioner, Thrissur, dated 25.01.2018 in E.C.C No.405 of 2016 is set aside by holding that the appellants are entitled to claim compensation on account of the death of Sri.Vasu in the accident occurred on 01.02.2006

Written by- Sushant Kumar Sharma

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