Icici Lombard General Insurance ... vs Ram Jatan Ram & Ors.
2011 Latest Caselaw 372 Del

                                     UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  MAC.APP. No. 64/2011

ICICI LOMBARD GENERAL INSURANCE CO. LTD.     ..... Appellant
                   Through: Ms. Suman Bagga, Advocate.
          versus

RAM JATAN RAM & ORS.                                  ..... Respondents
                  Through:             NEMO.
%                 Date of Decision : January 21, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

                          O R D E R (ORAL)

: REVA KHETRAPAL, J.

CM No. 1344/2011

Exemption granted subject to all just exceptions.

The application stands disposed of.

CM No. 1345/2011 and CM No. 1346/2011

By way of this application the applicant seeks condonation of

13 days delay in filing the appeal and 30 days delay in re-filing the

appeal. In view of the ground given in the applications, the delay is

condoned.

Both the applications stand disposed of.

MAC APP. No. 64/2011 and CM No. 1343/2011 (for stay)

This appeal has been preferred by the ICICI Lombard General

Insurance Company under Section 173 of the Motor Vehicles Act,

1988 for setting aside of the award dated 28th August, 2010 passed by

the Motor Accident Claims Tribunal, Delhi, whereby compensation

was awarded to the claimants in the sum of ` 4,73,600/- along with

interest @ 7.5% per annum from the date of the institution till

realization.

2. The brief facts giving rise to the claim petition are that on 28th

March, 2008 at about 11.00 p.m. the deceased, Sh. Mogal, was

returning to his house along with his elder brother Sh. Manoj Kumar

on foot. While he was crossing the road at Mukarba Chowk, Outer

Ring Road, Jahangirpuri, a vehicle bearing registration no. HR-38L-

0074, which was being driven rashly and negligently by the

respondent no.1-driver in a zig-zag manner, struck against him, as a

result of which he fell on the road and came under the wheels of the

offending vehicle and died on the spot.

3. Written statements were filed on behalf of all the respondents.

The appellant herein, which was the respondent no.3 in the claim

petition, in their written statement admitted that the offending vehicle

was insured with it vide policy no. 3003/53475550/00/000 for the

relevant period i.e. from 09-02-2008 to 08-02-2009.

4. On the basis of the pleadings of the parties, the issues were

framed by the learned Tribunal. The petitioner no.1 Sh. Ram Jatan

Ram, being the father of the deceased examined himself as PW1 and

stated that his son Mogal died in the road accident on 28th March,

2008 at Mukarba Chowk, while returning home along with his

brother Manoj Kumar, who was the eye witness to the accident. He

also filed certified copies of the criminal record to prove that the

driver of the offending vehicle had been chargesheeted by the police

after investigation. PW2, Manoj Kumar, the brother of the deceased

testified that his brother was fatally hit by the vehicle bearing

registration no.HR-38L-0074 in his presence. On the basis of the

testimony of PW2 and the fact that the respondent no.3 herein was

chargesheeted by the police, the learned Tribunal proceeded to hold

that the respondent no.3 herein was driving rashly and negligently and

thereby caused the death of the deceased-Mogal.

5. The sole ground on which the appeal is pressed by Ms. Suman

Bagga, the learned counsel appearing for the appellant is that the

Tribunal erred in computing the income of the deceased by taking the

average of the minimum wages of ` 3,600/- p.m. at the time of the

accident and its double which comes to ` 5,400/- p.m. (i.e. ` 3600/-

plus ` 7200/- divided by 2). According to Ms. Bagga, the

assessment of the average income by taking the mean of the actual

income (minimum wage) and doubling the said income is contrary to

the law laid down by the Supreme Court in the case of Sarla Verma

and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC

121.

6. I have heard the learned counsel for the appellant and find that

the contention of Ms. Suman Bagga, the learned counsel for the

appellant is not sustainable. It is rightly noted by the learned Tribunal

that it is well settled by a catena of judgments of this Court that

judicial notice of the increase of minimum wages to meet the increase

in price index and inflation rate must be taken while computing the

income of the deceased for the purpose of sustaining the quantum of

loss of dependency of his legal representatives. In all these decisions,

the Court has taken the view that the minimum wages get doubled

over the period of 10 years, and held that taking into account the

increase in minimum wages is not akin to taking into account the

future prospects of the deceased. The learned Tribunal has relied

upon the case of Santosh Devi vs. Abdul Kareem & Ors. decided on

8th October, 2009 in MAC APP. No. 440/2009 and Reshma & Ors.

vs. Harish Kaushik & Ors. decided on 11th December, 2009 in MAC

APP. NO. 560/2007 in which it is held that "the income of the

deceased should be computed by taking the average of minimum

wages at the time of the accident and it is double."

7. It may be mentioned at this juncture that the decision of the

Hon'ble Supreme Court rendered in the case of Sarla Verma (supra)

does not deal with the aspect of minimum wage at all and thus the

reliance placed upon the said decision by the learned counsel for the

appellant is entirely misplaced.

8. It may also be noted that this Court in the following decisions

has taken a view that it is legitimate for the Court while computing

the income of the deceased to take into account the fact that the

minimum wages get doubled over a period of 10 years and this aspect

has no nexus to the future progression of the deceased/victim in his

chosen job or vocation:

1. Kanwar Devi vs. Balsal Roadways, 2008 ACJ 2182;

2. National Insurance Company Ltd. vs. Renu Devi, III (2008) ACC 134;

3. UPSRTC vs. Munni Devi, IV (2009) ACC 879;

4. Shanti Devi & Ors. vs. Ghasiya Khachhap & Ors., ILR (2010) Delhi 412;

5. ICICI Lombard General Insurance Co. Ltd. vs. Bimla & Ors., MAC APP. No. 625/2009 decided on 28th April, 2010

and

6. New India Assurance Co. Ltd. vs. Sujata & Ors., MAC APP. No. 19/2011 decided on 21st January, 2011.

9. Faced with this situation, the learned counsel for the appellant

was not able to give any cogent reason as to why in this case this

Court should differ with the consistent view taken by the other

Benches of this Court nor was able to cite any judgment to the

contrary rendered by any other Court. Significantly also, I find that

while in this case 50% increase has been made to the minimum wage

which presumably the deceased was drawing at the time of his

demise, the multiplier of 14 has been given. This multiplier has not

been faulted by the appellant-Insurance company, being in

consonance with the decision of the Supreme Court in the case of

Sarla Verma and Ors. (supra,) and hence it can safely be presumed

that within a span of 14 years from the date of the accident, the

income of the deceased would have been two and a half times his

income on the date of the accident. The learned Tribunal, in

consonance with the judgments of this Court, has taken only a 50%

increase to beat the inflation rate and the rise in the price index.

10. For the aforesaid reasons, I find no merit in this appeal, which

is accordingly dismissed.

11. Before parting with the case, in my view, certain observations

are called for. It is the governmental policy to increase the rate of

minimum wages after a passage of every few years to meet the

escalation in the cost of living. The Courts while calculating the

income of the deceased for the purpose of computing the loss of

dependency of his legal representatives must bear this in mind, for,

there is no reason for the courts to take a different view than that

adopted by the government, which is in a better position and is better

equipped to calculate the rise in the price index and in the cost of

living. It also cannot be lost sight of that the Motor Vehicles Act is

designed to be a beneficial piece of legislation and is intrinsically

meant to afford relief to those who meet with untimely death or are

severely handicapped on account of a motor vehicular accident for

which only the tort-feaser is to blame.

12. With these observations, the appeal stands disposed of.

REVA KHETRAPAL (JUDGE) January 21, 2011 sk