Delhi High Court
New India Assurance Company Ltd. vs Smt. Kamla Rao & Ors. on 11 December, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th December, 2012
+ MAC.APP. 819/2012
NEW INDIA ASSURANCE COMPANY LTD. ...... Appellant
Through: Mr. Punit Vinay, Advocate
versus
SMT. KAMLA RAO & ORS. .... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of ` 12,22,416/-
awarded by the Motor Accident Claims Tribunal (the Claims
Tribunal) in favour of Respondent No.1 for the death of her husband
Madhav Rao.
2. The finding on negligence is not challenged by the Appellant
Insurance Company. Thus, the same has attained finality.
3. During inquiry before the Claims Tribunal, it was claimed that
deceased Madhav Rao was doing a private job in Safal Dairy and was
earning ` 8,000/- per month. In the absence of any cogent evidence
with regard to the deceased's income, the Claims Tribunal took the
minimum wages of an unskilled worker as fixed by the Govt. of NCT
of Delhi under the Minimum Wages Act; added 30% towards
inflation on the basis of report of the Supreme Court in Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 to
compute the loss of dependency as ` 10,12,416/-.
4. The Claims Tribunal further awarded a sum of ` 1,00,000/- towards
loss of love and affection, `50,000/- each towards loss of consortium
and loss to estate and `10,000/- towards funeral expenses to compute
overall compensation as ` 12,22,416/-
5. The Claims Tribunal further awarded a sum of ` 60,000/- towards
counsel's fee.
6. The following contentions are raised on behalf of the Appellant
Insurance Company:
(i) The First Respondent was the only dependent on the
deceased; deduction towards personal and living expenses
should have been one-half instead of one-third made by the
Claims Tribunal.
(ii) Compensation of `1,00,000/- towards loss of love and
affection and `50,000/- each towards loss of consortium
and loss to estate is excessive and exorbitant.
(iii) Award of compensation of `60,000/- towards counsel's fee
is arbitrary, excessive and exorbitant.
(iv) Award of interest @ 9% is on the higher side.
LOSS OF DEPENDENCY
7. It is not in dispute that Respondent No.1 Smt.Kamla Rao was the only
dependent on the deceased. The deceased Madhav Rao was claimed
to be in a private employment. In the absence of any evidence with
regard to his income, the Claims Tribunal awarded the loss of
dependency on Minimum Wages. Thus, it is not a case where the
deceased would be having enough to spare from his income so as to
spend less than 50% on himself. The Claims Tribunal, therefore, erred
in deducting 1/3 towards personal living and expenses. In the
circumstances of the case, it would be appropriate to deduct 50%
towards personal and living expenses.
NON-PECUNIARY DAMAGES
8. In this case, the Claims Tribunal awarded a sum of ` 1,00,000/-
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 ` 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/-.
9. The Claims Tribunal further awarded a sum of ` 50,000/- each
towards loss of consortium and loss to estate. In Sarla Verma & Ors.
v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, the
Supreme Court laid down that only a notional sum to the extent of `
5,000/- to ` 10,000/- should be awarded under these heads. I would,
therefore, reduce the compensation under these heads to ` 10,000/-
each towards loss of consortium and loss to estate.
10. The Claims Tribunal awarded the interest @ 9% per annum. It is
urged that the same is excessive. I would not agree. This accident
took place in the year 2011, rate of interest in Nationalised Banks on
long terms deposit since the year 2010 were in the vicinity of about
9%. In Dhaneshwari & Another v. Tajeshwar Singh & Others, MAC.
APP 997/2011 decided on 19.3.2012, this Court held that awarding
interest at less than 9% per annum is unreasonable, if the accident has
taken place in 2010 or thereafter.
11. Loss of dependency thus comes to ` 7,59,283/-(6084/-+ 30% x 1/2 x
12 x16).
12. On making an addition a sum of ` 25,000/- towards loss of love and
affection and ` 10,000/- towards loss of consortium and loss to estate,
the overall compensation comes to ` 8,04,283/-.
13. The Claims Tribunal while disposing of the Claim Petition awarded a
sum of `60,000/- towards counsel's fee. This Court in 'ICICI
Lombard General Insurance Co. Ltd. v. Kanti Devi & Ors.' (MAC.
APP. 645/2012) through which a number of Appeals were decided on
30.07.2012, interpreted the Rules for awarding the costs while
deciding a Claim Petition. The counsel's fee is payable only in terms
of Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume 1 of
the Delhi High Court Rules and subject to filing the certificate of fee.
No such certificate has been filed by the counsel for the Respondents
(Claimants). The order with regard to the payment of counsel fee is,
therefore, set aside.
14. The compensation is thus reduced from ` 12,22,416/- to ` 8,04,283/-
15. The Appeal is allowed in above terms.
16. Pending Applications also stand disposed of.
17. The statutory deposit of `25,000/- be refunded to the Appellant
Insurance Company.
(G.P. MITTAL)
JUDGE
DECEMBER 11, 2012/v
