Delhi High Court
Icici Lombard General Insurance ... vs Sarla Soni & Ors on 26 March, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th March, 2012
Pronounced on:26th March, 2012
+ MAC APP. 582/2011
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms. Suman Bagga Adv.
Ms. Garima Goswami, Adv.
versus
SARLA SONI & ORS ..... Respondents
Through: Mr. B.R. Sharma, Adv. for R-1
to R-7
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant ICICI Lombard General Insurance Company
Limited impugns the judgment dated 26.04.2011 whereby a
compensation of `12,67,000/- was awarded for the death of
Rajender Kumar Soni in an accident which occurred on
04.11.2009. The deceased succumbed to the injuries on
01.12.2009.
2. During inquiry before the Motor Accident Claims Tribunal (the
Claims Tribunal), it was claimed that the deceased was in a
private service and was earning `7,000/- per month. In the
absence of any cogent evidence regarding deceased's income,
the Claims Tribunal took the minimum wages of an unskilled
worker and added 50% on account of inflation to compute the
loss of dependency as ` 7,97,000/-.
3. Following contentions are raised on behalf of the Appellant:-
(i) The deceased had earlier suffered a paralytic attack.
There was contributory negligence on the part of the
deceased. Thus, the entire blame could not have been
shifted on the driver for the unfortunate accident.
(ii) Respondent No.2 Neha Soni was the deceased's married
daughter and was not financially dependent on the
deceased. Deduction towards the personal and living
expenses should have been taken as one-fourth as against
one-fifth, taken by the Claims Tribunal.
(iii) Award of `4,00,000/- towards loss of love and affection
is excessive and arbitrary.
4. In order to prove negligence, the Claimants examined Dinesh as
PW-2. He swore in his Affidavit Ex.PW-2/A. He deposed that
on 04.11.2009 he had accompanied his father-in-law i.e. the
deceased Rajender Kumar Soni. At about 8:00 P.M. when they
reached in front of Jai Mata Dharam Kanta, Main Rohtak Road,
Tikri Kalan, Delhi a Haryana Roadways Bus bearing No.HR-
62-0357 came from Bahadurgarh side. It was being driven at a
high speed and in a rash and negligent manner. The bus dashed
against the deceased who suffered fatal injuries.
5. In cross-examination, the witness denied the suggestion that the
deceased had lost balance and he himself struck against the side
of the bus. He admitted that the deceased was removed to the
hospital by the driver of the bus.
6. Ajay Singh driver of the Haryana Roadways Bus proved his
Affidavit Ex.R1W1/A and entered the witness box as R1W1.
He testified that he started from Tikri Border at about 8:00 P.M.
The deceased was standing on the divider of the road and was
under the influence of liquor. The deceased fell down (on his
own) and struck against the rear right side of the bus. He
deposed that on medical examination, the deceased was found
to be under the influence of alcohol.
7. The facts that the deceased was standing in the middle of the
divider or that he himself struck against the bus under the
influence of liquor were not put to PW-2 Dinesh in his cross-
examination. No suggestion was given that the deceased was
under the influence of liquor. No evidence has been produced
by the driver or the Appellant to show that the deceased had
consumed alcohol or was under its influence. On the principles
of preponderance of probability, the Claims Tribunal rightly
believed PW-2 to return the finding on negligence on the part of
the driver.
8. As far as deceased's income is concerned, the Claims Tribunal
rightly declined to believe the testimony of PW-1 Sarla Soni
that the deceased was earning `7,000/- per month. PW-1 did
not disclose as to where the deceased was working and the
nature of work undertaken by him.
9. In the absence of any evidence, the Claims Tribunal rightly took
the help of Minimum Wages Act to assume the deceased's
income to be `3953/- per month. The addition of 50% in the
Minimum Wages is however, not permissible.
10. In Dhaneshwari & Another v. Tajeshwar Singh & Others, MAC.
APP 997/2011 decided on 19.3.2012, after noticing the
Judgments of this Court in Smt. Anari Devi v. Shri Tilak Raj &
Anr., II (2004) ACC 739; (2005 ACJ 1397), National Insurance
Co. Ltd. v. Pooja & Ors., II (2006) ACC 382; (2007 ACJ 1051),
Om Kumari & Ors. v. Shish Pal & Ors, 140 (2007) DLT 62,
Narinder Bishal & Anr. v. Rambir Singh & Ors.,MAC APP.
1007-08/2006, decided on 20.02.2008, New India Assurance
Co. Ld. v. Vijay Singh MAC APP. 280/2008 decided on
09.05.2008; Oriental Insurance Company Limited v. Smt. Rajni
Devi & Ors. MAC APP.286/2011 decided on 06.01.2012; Smt.
Gulabeeya Devi v. Mehboob Ali & Ors. MAC APP.463/2011
decided on 10.01.2012 and IFFCO TOKIO Gen. Ins. Co. Ltd. v.
Rooniya Devi & Ors. MAC APP.189/2011 decided on
30.01.2012 and Division Bench Judgments of this Court in
Delhi Transport Corporation and Anr. v. Kumari Lalita 22
(1982) DLT 170 (DB) and Rattan Lal Mehta v. Rajinder Kapoor
& Anr. II (1996) ACC 1 (DB). I have held that in view of
Rattan Lal Mehta (supra) increase in minimum wages cannot be
given on account of future inflation.
11. It is not disputed that Respondent No.2 Neha Soni was the
deceased's married daughter and was not financially dependent
on the deceased. The Claims Tribunal, therefore, ought to have
made deduction of one-fourth of the deceased's income towards
his personal and living expenses (as the number of dependents
were six) instead of one-fifth.
12. The loss of dependency comes to ` 4,98,078/- (3953/- x 3/4 x 12
x 14).
13. The Claims Tribunal awarded a compensation of `4,00,000/-
towards loss of love and affection. Loss of love and affection
can never be measured in terms of money. Thus, uniformity has
to be adopted by the Courts while granting non-pecuniary
damages. The Supreme Court in Sunil Sharma v. Bachitar Singh
(2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental
Insurance Company Limited (2009) 17 SCC 627 granted only `
25,000/- (in total to all the claimants) under the head of loss of
love and affection. Thus, I would reduce the compensation
under this head to ` 25,000/- only.
14. The overall compensation is re-computed as under:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Loss of Dependency `7,97,000/- `4,98,078/-
2. Loss to Estate ` 35,000/- ` 10,000/-
3. Funeral Expenses ` 20,000/- ` 10,000/-
4. Loss of Love & Affection ` 4,00,000/- ` 25,000/-
5. Medical Expenses ` 5,000/- ` 5,000/-
6. Loss of Consortium ` 10,000/- ` 10,000/-
Total ` 12,67,000/- ` 5,58,078/-
15. The overall compensation is thus reduced from ` 12,67,000/- to
` 5,58,078/-. The excess amount of ` 7,08,922/- along with the
proportionate interest and the interest accrued, if any, during the
pendency of the Appeal shall be refunded to the Appellant
Insurance Company.
16. 10% each of the compensation along with the proportionate
interest shall be payable to the Respondents No.3 to 7. Rest of
the compensation shall be payable to the first Respondent.
17. The compensation payable to Respondents No.3 to 5 shall be
held in fixed deposit till they attain the age of 21 years.
18. 20% of the share payable to the first Respondent shall be
released to her immediately. Rest of the amount shall be held in
fixed deposits for a period of two years, four years, six years
and eight years respectively in equal proportion and shall be
released to her on the date of maturity. The first Respondent
shall be entitled to quarterly interest on the same.
19. The amount payable to the Respondents No.6 and 7 shall be
released immediately on deposit.
20. The Appeal is allowed in above terms.
21. No costs.
22. Statutory amount shall also be refunded to the Appellant
Insurance Company.
23. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MARCH 26, 2012
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