Icici Lombard Gen Insurance Co Ltd vs Memuna Begum & Ors.
2011 Latest Caselaw 2668 Del

                                                      UNREPORTED

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  MAC.APP. 4/2011

ICICI LOMBARD GEN INSURANCE CO LTD ..... Appellant
              Through: Mr. Tarun Singla, Advocate

             versus


MEMUNA BEGUM & ORS.                    ..... Respondents
           Through: Mr. Navneet Goyal, Advocate.


%                         Date of Decision : May 18, 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?

                          ORDER (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated

07.10.2010, passed by the Motor Accident Claims Tribunal in Suit

No. 478/09, awarding a sum of ` 8,32,000/- to the respondents No.1

to 8, for the death of Mohd. Anis Ahmed in a motor vehicular

accident.

2. The brief facts relevant for the decision of the present appeal

are that the aforesaid Mohd. Anis Ahmed (hereinafter referred to as

"the deceased") sustained fatal injuries in a motor accident on

28.10.2009 when he was hit by the offending vehicle bearing

temporary No. HR-99-TEA-8208 while he was crossing the road in

front of Meridian Hotel, Civil Lines, Delhi. He died on the following

day, that is, on 29.10.2009. A Claim Petition under section 166 read

with section 140 of the Motor Vehicles Act, 1988 was filed before the

Claims Tribunal by the respondents No.1 to 8, being the widow and

seven children of the deceased. The Claims Tribunal, after coming to

the conclusion that the accident in question had taken place on

account of the rash and negligent driving of the offending vehicle by

the respondent No. 9, awarded a sum of ` 8,32,000/- to the

respondents no. 1 to 8 alongwith interest at the rate of 7.5% per

annum from the date of the filing of the petition till the date of the

realisation of the amount.

3. Mr. Tarun Singla, the learned counsel for the appellant-

Insurance Company, has challenged the aforesaid award passed by

the Claims Tribunal solely on the ground that the respondents no. 1 to

8 not having placed on record any proof of the income of the

deceased, the Claims Tribunal erred in taking into account the future

prospects of the deceased and, increasing the minimum wages

applicable on the date of the death of the deceased by 50% while

calculating the loss of dependency of the respondents no. 1 to 8. Mr.

Singla relies upon the judgements of the Supreme Court in the cases

of Sarla Verma versus Delhi Transport Corporation, (2009) ACJ

1298 and Abati Bezbaruah versus Dy. Director General, Geological

Survey of India, (2003) 1 SCR 1229, to support his argument that

while assessing the income of the deceased for the purpose of

calculating the loss of dependency of his legal representatives, 50%

increase in the income of the deceased towards the future prospects

could not be taken into account where the deceased was aged 45 years

and no proof of his income was on record. Mr. Singla puts forth the

argument that the future prospects, if any, could be allowed to the

extent of 30% only as it has been clearly laid down in the case of

Sarla Verma (supra) that where the deceased was aged between 40 to

50 years, the addition towards future prospects should be to the extent

of not more than 30%.

4. I am not inclined to agree with the aforesaid contention of

Mr. Singla, the learned counsel for the appellant, as to my mind, there

is a clear cut distinction between the Claims Tribunal taking into

account the periodical increase in minimum wages on account of

inflation and taking into account the future prospects of advancement

of the deceased in his chosen career or job. This distinction has been

explained by this Court in a number of decisions and there is no scope

left for any controversy in this regard. In a recent decision of this

court rendered in New India Assurance Company Limited versus

Ramesh and Ors. MACA 718/2010 decided on 04.02.2011, it was

held as follows:

"It has been the consistent view of different Benches of this High Court that minimum wages get doubled over a period of 10 years, and this is not a fact which can be brushed aside while computing the loss of dependency of the legal representatives of the deceased in a motor

vehicular accident. As regards the reliance placed on the cases of Sarla Verma and Bijoy Kumar Dugar (supra), by the learned counsel of the Appellant, it is pertinent to note that in both the said cases the aspect of rise of minimum wage rate has not been touched upon and pertinently in the second case enhancement of compensation was refused on the ground that no material could be placed on record by the claimants to support their contention that the future prospects of the deceased ought to have been taken into consideration for the purpose of assessment of the income of the deceased. In the context of cases where compensation is awarded on the basis of minimum wages, however, this Court has, time and again, taken the view that the benefit of doubling of minimum wages must be given to counter the rise in price index and inflation; and that the Court's taking into account the increase in minimum wages is not akin to taking into account the future prospects of the deceased in his chosen job or vocation."

5. A similar view has been taken by this Court in a subsequent

decision in the case of New India Assurance Comapny Limited

versus Rajni Devi and Ors. MACA 9/2011 decided on 13.05.2011.

The relevant portion of the said judgment reads as follows:

"4. Mr. K.L.Nandwani, the learned counsel for the Insurance Company has challenged the aforesaid award passed by the Claims Tribunal solely on the ground that the Claims Tribunal, in view of the fact that the claimants had totally failed

to prove the income of the deceased, while taking the income of the deceased on the basis of the minimum wages applicable on the date of the accident to a matriculate, erred in giving the benefit of doubling of the minimum wages. The contention of Mr. Nandwani is that this tantamounted to the Claims Tribunal awarding the benefit of future prospects of the deceased to the claimants, which could not be done, keeping in view the law laid down by the Supreme Court in the cases of Bijoy Kumar Dugar versus Bidya Dhar Dutta, (2006)3 SCC 242 and Sarla Verma versus Delhi Transport Corporation, (2009) ACJ 1298. In both the aforesaid cases, the Supreme Court, Mr. Nandwani contended, had unequivocally laid down that while assessing the income of the deceased for the purpose of calculating the loss of dependency of his legal representatives, the future prospects of the deceased could not be taken into account where the deceased had no permanent employment. \

5. I am not inclined to agree with the aforesaid contention of Mr. K.L.Nandwani, the learned counsel for the appellant, as to my mind, there is a basic difference between the Claims Tribunal taking into account the increase in minimum wages and taking into account the future prospects of advancement of the deceased in his career or job, and the fallacy lies in confusing the two.

6. Judicial notice has been taken time and again of the fact, by different Benches of this High Court, that minimum wages get doubled over a period of 10 years and this is a fact which cannot be brushed aside while computing the loss of dependency of the legal representatives of the deceased in a motor

vehicular accident. In the following amongst other decisions, this Court has taken the view that the benefit of doubling of minimum wages must be given to counter the rise in price index and inflation:

(i) Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182,

(ii) National Insurance Company Limited vs. Renu Devi, III (2008) ACC 134,

(iii) UPSRTC vs. Munni Devi, IV (2009) ACC 879,\

(iv) Shanti Devi and Ors. vs. Ghasiya Khachhap and Ors., ILR (2010) Delhi 412,

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

(vi) Jitender Kumar vs. Virender Singh, II (2010) ACC 322, and

(vii) National Insurance Co. Ltd. vs. Kailash Devi, II (2008) ACC 770.

7. As regards the reliance placed by the learned counsel for the Insurance Company on the cases of Bijoy Kumar Dugar and Sarla Verma (supra), it is apposite that in both the said cases the aspect of rise in the minimum wage rate has not even been touched upon and as a matter of fact in both the cases, it has been emphasized that the Claims Tribunal must assess the income of the deceased on the basis of the evidence placed on record by the claimants.

8. During the course of hearing, furthermore, no cogent reason could be assigned by the learned

counsel for the appellant as to why judicial notice should not be taken of the fact that the Government of the National Capital Territory of Delhi, by notification, increases the rate of minimum wages every six months or so to meet the increase in price index and inflation rates, and for this reason this Court has consistently taken the view that in cases where the compensation payable to the victim or his legal representatives is being computed on the basis of minimum wages, the minimum wages earned by the deceased must be presumed to have doubled over a span of 10 years."

6. As regards the argument of the learned counsel for the

appellant that the addition ought to have been to the extent of 30%

because the deceased was aged 45 years, I am not in agreement with

this line of argument either. As stated above, the minimum wage rate

is increased every six months or so and over a period of ten years the

increase is 100% so as to double the minimum wages. The deceased

was admittedly 45 years of age at the time of his death and it can

easily be presumed that he would have worked for another ten years

at least, if not more. As such, there is no manner of doubt that the

minimum wage rate prevalent at the time of the death of the deceased

would have doubled during his career span, had he not died in the

accident. The Tribunal, thus, in my opinion, committed no error in

increasing the minimum wages applicable at the time of the death of

the deceased by 50% on account of inflation and rise in price index.

7. In the instant case, the deceased was stated to be a labourer

and earning a sum of ` 4,000/- per month at the time of his death.

However, the Claims Tribunal, in view of the fact that the

respondents no. 1 to 8/claimants could not place on record any proof

regarding the income of the deceased, resorted to the Minimum

Wages to compute the loss of dependency of the respondents no. 1 to

8, which were in the sum of ` 3,953/- per month as applicable on the

date of the accident. Thereafter, the Claims Tribunal added 50% to

the aforesaid amount towards increase in minimum wages on account

of inflation and rise in price index to arrive at a sum of ` 5,929.50/-

per month. Deducting one-fifth therefrom towards the personal

expenses of the deceased and applying the multiplier of 14, the

Tribunal calculated the total loss of dependency of the respondents

no. 1 to 8 in the sum of ` 7,96,924.80/-, that is, ` 5,929.50/- x 12 x

14 x 4/5. To this amount, the Tribunal added a sum of ` 35,000/- by

way of non-pecuniary damages and awarded a sum of ` 8,32,000/- in

all, to the respondents no. 1 to 8.

8. I find no error in the aforementioned computation of the loss

of dependency of the respondents no. 1 to 8 herein. The mode of

calculating the award amount as adopted by the Claims Tribunal, to

my mind, was just and proper and calls for no interference.

9. The award is accordingly upheld. Resultantly, the appeal is

dismissed as being without merit.

10. Records of the learned Tribunal be sent back.

REVA KHETRAPAL (JUDGE) May 18, 2011 ak