Oriental Insurance Co. Ltd. vs Radha & Ors.
2012 Latest Caselaw 7120 Del

$ 17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 12th December, 2012
+        MAC. APP. 1017/2011

         ORIENTAL INSURANCE CO. LTD.       ..... Appellants
                      Through: Mr. J.P.N. Shahi, Advocate.

                         Versus

         RADHA & ORS.                                 ..... Respondents
                              Through:    Mr.A. Shankar with Mr. J.K. Mishra,
                                          Advocates for the Respondents No.1 to 7.
                                          Mr. S.N. Parashar, Advocate for the
                                          Respondents No.8 & 9.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of `11,11,500/- awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of the Respondents No.1 to 7 for the death of Ram Bahadur who died in a motor vehicle accident which occurred on 08.02.2009.

2. The finding on negligence reached by the Claims Tribunal 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 the deceased was employed as a security guard and was earning `5,000/- per month. In the absence of any evidence with regard to the deceased's

employment or income, the Claims Tribunal adopted minimum wages of an unskilled worker to compute the loss of dependency. The Claims Tribunal added 50% towards inflation, deducted 1/5th towards personal and living expenses(as number of dependents were 7) and applied the multiplier of 16 as per the age of the deceased (28 years). The Claims Tribunal awarded a sum of `1,75,000/- towards loss of love and affection and `10,000/- each towards loss of consortium, loss to estate and funeral expenses.

4. The following contentions are raised on behalf of the Appellant:

(i) In the absence of any evidence with regard to the future prospects, 50% addition towards inflation could not have been made by the Claims Tribunal.

(ii) A compensation of `1,75,000/- towards loss of love and affection is on the higher side.

(iii) The Claimant had withdrawn a sum of `1,00,000/- deposited by the owner, this amount would be liable to be adjusted.

(iv) Award of interest @ 9% is on the higher side.

FUTURE PROSPECTS:

5. Admittedly, there was no evidence with regard to the deceased's future prospects. In view of the judgment of the Supreme Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors, (2006) 3 SCC 242 and Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, addition of 50% towards future prospects could not have been made by the Claims Tribunal. However, an addition of 30% towards inflation should have been made on the basis of the report in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

LOVE AND AFFECTION:

6. 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/- only.

7. It is admitted by the learned counsel for the Respondents No.1 to 7 that a sum of `1,00,000/- deposited by the owner was paid to the Claimants. Thus, this amount was liable to be reimbursed by the Appellant Insurance Company to the owner Respondent No.9 herein.

8. As far as award of interest is concerned, this accident took place in the year 2009. Since the year 2010, rate of interest on long term deposit is in the vicinity of 9%. In Smt. Dhaneshwari & Another v. Tajeshwar Singh & Others, (MAC. APP 997/2011) decided on 19.3.2012, this Court held as under:

"70. Rate of interest were in double digits in 1980's and 1990's. The interest rate started falling at the beginning of this century. They started rising and firming up since 2007. Since the rate of interest on long term deposit is now about 9% per annum, it is unreasonable to award interest @ 7.5% per annum to the victims of the motor accident."

9. Thus, the award of interest @ 9% awarded by the Claims Tribunal cannot be said to excessive.

10. In the result, the loss of dependency would come to `7,85,541/-(`3934/- x 12 +30% x 4/5 x 16)

11. The overall compensation is thus reduced from `11,11,500/- to `8,40,541/-.

12. The excess amount of `2,70,959/- along with interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company. Out of remaining amount, a sum of `1,00,000/- shall be refunded to the Respondent No.9 by the Bank concerned.

13. Remaining amount of `7,40,541/-, after deducting the interim compensation of `50,000/-, if already paid, shall be released in favour of the Respondents No.1 to 7 in terms of orders passed by the Claims Tribunal.

14. The Appeal is allowed in above terms.

15. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant Insurance Company.

16. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE DECEMBER 12, 2012 pst