Delhi High Court

Cholamandalam Ms Gen Ins. Co. Ltd vs Smt Manoj & Ors on 5 March, 2010

Author: J.R. Midha

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                  +       MAC.APP.No.443/2009

                                Date of Decision: 5th March, 2010
%
      CHOLAMANDALAM MS GEN INS. CO. LTD ..... Appellant
                  Through Ms. Suman Bagga, Advocate.

                      versus

      SMT MANOJ & ORS                  ..... Respondents
                   Through Sh. K.K. Sharma, Adv. for
                   R-1 to R-6

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may               YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?              YES

3.      Whether the judgment should be                      YES
        reported in the Digest?

                          JUDGMENT (Oral)

1. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.13,44,200/-

has been awarded to claimants/respondents No.1 to 6.

2. The accident dated 30th March, 2004 resulted in the

death of Avadh Bihari. The deceased was survived by his

widow, two daughters and parents, who filed the claim

petition before the learned Tribunal.

3. The deceased was aged 26 years at the time of the

accident and was running a tea stall. However, in the

absence of any documentary proof of income, the learned

Tribunal took the minimum wages of Rs.2862.90 in respect of

an unskilled worker. The learned Tribunal presumed that the

minimum wages would have increased 5 times by the end of

his working period and took the average of his minimum

wages and 5 times as Rs.8,589/- {[Rs.2,862.90 +

(Rs.2,862.90 x 5)]/2}. The learned Tribunal deducted 1/4th

towards the personal expenses of the deceased and applied

the multiplier of 17 to compute the loss of dependency at

Rs.13,14,117/-. The learned Tribunal has awarded Rs.

5,000/- towards loss of estate, Rs.5,000/- towards funeral

expenses, Rs.10,000/- towards loss of consortium and

Rs.10,000/- towards loss of love and affection. The total

compensation awarded is Rs.13,44,117/- rounded off as

Rs.13,44,200/-.

4. The learned counsel for the appellant has urged the

following grounds at the time of hearing of this appeal:-

(i) The increase in minimum wages due to inflation

and rise in price index be taken as 50% of

minimum wages.

(ii) The recovery rights be given against the owner of

the offending vehicle.

5. The learned counsel for claimants/respondents No.1

to 6 submit that the minimum wages in respect of a skilled

person should be taken into consideration and the

compensation towards loss of estate and funeral expenses

be enhanced.

6. Respondent No.8 is present in person and he submits

that he had checked the driving licence of the driver before

handing over the vehicle to him and, therefore, he has not

committed breach of the terms of the policy. Respondent

No.8 further submits that he appeared in the witness box as

R2W1 before the Claims Tribunal and deposed that he

checked the driving licence of the driver before handing over

the motorcycle to him and he was not cross-examined by the

Insurance Company on this aspect.

7. The learned Tribunal has taken the minimum wages of

Rs.2862.90 in respect of an unskilled worker. The deceased

was running a tea stall and, therefore, the minimum wages in

respect of a skilled worker ought to have been taken. The

minimum wages of Rs.3,286.90 in respect of a skilled worker

at the time of accident are taken for computation of

compensation.

8. The learned Tribunal has presumed that the minimum

wages would have increased five times and has taken the

average of five times which is not in accordance with law. It

is well settled by catena of judgments of this Court in the

cases of Kanwar Devi vs. Bansal Roadways, 2008 ACJ

2182, National Insurance Company Limited vs. Renu

Devi III (2008) ACC 134 and UPSRTC vs. Munni Devi,

MAC.APP.No.310/2007 decided on 28.07.2008 that the

Court should take judicial notice of increase in minimum

wages to meet the increase in price index and inflation rate.

The Court has taken the view that the minimum wages get

doubled over the period of 10 years and increase in

minimum wages should be taken as average of minimum

wages and its double.

9. Following the aforesaid judgments, the finding of the

learned Tribunal is set aside and Rs.4,930.35 [(Rs.3286.90 +

Rs.6573.80)/2] is taken as the average of minimum wages

and its double for computation of compensation.

10. The learned Tribunal has deducted 1/4th towards his

personal expenses and applied the multiplier of 17, which is

upheld. Taking the income of the deceased at Rs.4930.35,

deducting 1/4th towards the personal expenses and applying

the multiplier of 17, the loss of dependency is computed to

be Rs.7,54,343/- (4930.35 x 3/4 x 12 x 17).

11. The learned Tribunal has awarded Rs.10,000/- towards

loss of consortium and Rs.10,000/- towards loss of love and

affection which is just, fair and reasonable. However, the

compensation for loss of love and affection and funeral

expenses is on a lower side. The compensation for loss of

love and affection is enhanced from Rs.5,000/- to Rs.10,000/-

and the compensation for funeral expenses is also enhanced

from Rs.5,000/- to Rs.10,000/-. The total compensation

computed to be Rs.7,94,343/- (Rs.7,54,343 + Rs.10,000 +

Rs.10,000 + Rs.10,000 + Rs.10,000).

12. Respondent No.8 is the owner of the offending vehicle

who appeared in the witness box as R2W1 and deposed that

he had checked driving licence of the driver of the offending

vehicle before handing over the motorcycle to him. R2W1

was not cross examined by the appellant on the above

aspect. Following the judgment of the Hon'ble Supreme

Court in the case of National Insurance Co. Ltd. vs.

Swaran Singh, 2004 ACJ 1, the learned Tribunal held that

the appellant is not entitled to recovery rights against

respondent No.8. The finding of the learned Tribunal in this

regard is upheld.

13. The appeal is allowed and the award amount is reduced

from Rs.13,44,400/- to Rs.7,94,343/- along with interest

thereon @7.5% per annum from the date of filing of the

claim petition till realization.

14. The claimants have already received the interim

compensation of Rs.50,000/- from the Claims Tribunal and,

therefore, they are now entitled to Rs.7,44,343/- along with

interest from the date of filing of the claim petition i.e. 16 th

August, 2004 up to date which comes to Rs.10,54,290/-

(Rs.7,44,343 + Rs.3,09,947).

15. The appellant has deposited a sum of Rs.17,76,331/- with

the Registrar General of this Court in terms of order dated

18th September, 2009. The Registrar General is directed to

transfer/remit a sum of Rs.10,54,290/- to UCO Bank A/c Smt.

Manoj, Delhi High Court Branch, within a period of three

weeks.

16. The remaining amount of Rs.7,22,041/- as well as

statutory amount deposited by the appellant along with this

appeal be refunded back to the appellant through Counsel

within four weeks.

17. Upon receipt of Rs.10,54,290/-, UCO Bank is directed to

release Rs.1,04,290/- to respondents No.1,3 and 4 in equal

shares. The remaining amount of Rs.9,50,000/- be kept in

fixed deposit in the following manner:-

(i.) Fixed deposit for Rs.50,000/- in the name of

respondent No.1 for a period of one year.

(ii.) Fixed deposit for Rs.50,000/- in the name of

respondent No.3 for a period of two years.

(iii.) Fixed deposit for Rs.50,000/- in the name of

respondent No.4 for a period of three years.

(iv.) Fixed deposit for Rs.50,000/- in the name of

respondent No.1 for a period of four years.

(v.) Fixed deposit for Rs.50,000/- in the name of

respondent No.3 for a period of five years.

(vi.) Fixed deposit for Rs.50,000/- in the name of

respondent No.4 for a period of six years.

(vii.) Fixed deposit for Rs.50,000/- in the name of

respondent No.1 for a period of seven years.

(viii.) Fixed deposit for Rs.50,000/- in the name of

respondent No.1 for a period of eight years.

(ix.) Fixed deposit for Rs.50,000/- in the name of

respondent No.1 for a period of nine years.

(x.) Fixed deposit for Rs.2,50,000/- in the name of

respondent No.2 till she attains the age of 20

years.