Delhi High Court
Hdfc Ergo General Insurance Co. ... vs Tofa Devi & Ors. on 7 November, 2012
Author: G.P. Mittal
$~ 24 & 39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th November, 2012
+ MAC. APP. 525/2012
HDFC ERGO GENERAL INSURANCE CO. LTD. ..... Appellant
Through Ms.Neerja Sachdeva, Advocate
versus
TOFA DEVI & ORS. ..... Respondents
Through Mr. Sanjeev Srivastava, Advocate
+ MAC. APP. 1175/2012
TOFA DEVI & ORS. ..... Appellants
Through Mr. Sanjeev Srivastava, Advocate
versus
BABLU SINGH & ORS. ..... Respondents
Through Ms.Neerja Sachdeva, Advocate for the
Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM.APPL.8814/2012(delay) in MAC.APP.525/2012
For the reasons stated in the application, the delay of 17 days in filing the
Appeal is condoned.
The application stands disposed of.
CM.APPL.18973/2012(delay in refiling) & CM. APPL.18972/2012 (delay)
in MAC.APP.1175/2012
For the reasons stated in the applications, the delay, if any, in refiling the
Appeal and delay of 137 days in filing the Appeal is condoned.
The applications stand disposed of.
MAC.APP.525/2012 & MAC. APP.1175/2012
1. These two Appeals (MAC.APP.525/2012 and MAC. APP.1175/2012)
arise out of a common judgment dated 24.01.2012 passed by the Motor
Accident Claims Tribunal(the Claims Tribunal) whereby a compensation
of `13,70,200/- was awarded in favour of the legal representatives of
deceased Bal Kishan for his death in a motor vehicle accident which
occurred on 07.08.2011.
2. The MAC. APP.525/2012 has been filed by the HDFC ERGO General
Insurance Co. Ltd., the insurer of vehicle No.RJ-14-GB-4616 involved in
the accident, on the ground that the compensation awarded is exorbitant
and excessive. MAC.APP. 1175/2012 has been preferred by the legal
representatives on the ground that the compensation awarded is too low
and niggardly.
3. For the sake of convenience, the Appellant in MAC.APP.525/2012 shall
be referred to as the Insurance Company, whereas the Appellants in
MAC. APP.1175/2012 shall be referred to as the Claimants.
4. The finding on negligence is not challenged by the Appellant Insurance
Company. The same has, therefore, attained finality.
5. During inquiry before the Claims Tribunal, it was claimed that the
deceased was working as a driver and was earning `12,500/- per month.
During evidence, the salary certificate was proved which showed that the
deceased was getting a salary of `8,500/- in addition to overtime @ `30/-
per hour whenever he worked as such. This salary certificate was also
verified by the investigating officer of the case while filing DAR(Detailed
Accident Report). The Claims Tribunal made an addition of 20%
because of inflation, deducted 1/4th towards personal and living expenses
as the number of dependents were 5 and applied a multiplier of 14 as per
the age of the deceased to compute the loss of dependency. The Claims
Tribunal further awarded a sum of `50,000/- towards loss of love and
affection, `15,000/- towards funeral expenses and `10,000/- each towards
loss of consortium and loss to estate.
6. It is urged by the learned counsel for the Appellant Insurance Company
that addition of 20% towards inflation was not justified and the Claims
Tribunal ought to have granted compensation on the income of the
deceased on the date of his death. Reliance is placed on Sarla Verma &
Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121. It is
further contended that award of compensation of `50,000/- towards loss
of love and affection is on the higher side.
7. On the other hand, learned counsel for the Claimants argued that even if
there was no evidence with regard to the deceased's bright future
prospects, the Claimants were entitled to an addition of 30% towards
inflation. Reliance is placed on Santosh Devi v. National Insurance
Company Ltd. & Ors., 2012 (4) SCALE 559. It is stated that as per the
School Leaving Certificate placed on record, the deceased's date of birth
was 15.07.1974. Thus, he was only 37 years on the date of the accident
which took place on 07.08.2011. The appropriate multiplier at the age of
37 years was 15. The Claims Tribunal was not justified in taking the age
of the deceased to be 42 years on the basis of the Voter Identity Card
issued by the Election Commission of India.
8. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that as per Santosh Devi even in the absence of any evidence as to
future prospects an increase of 30% in the income has to be provided
where the victim had fixed income or was a self employed person.
Relevant portion of Santosh Devi is extracted hereunder:-
"14.....In our view, it will be naive to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual increment,
etc., would remain the same throughout his life. The rise in the cost
of living affects everyone across the board. It does not make any
distinction between rich and poor. As a matter of fact, the effect of
rise in prices which directly impacts the cost of living is minimal
on the rich and maximum on those who are self- employed or who
get fixed income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families. The salaries of those
employed under the Central and State Governments and their
agencies/instrumentalities have been revised from time to time to
provide a cushion against the rising prices and provisions have
been made for providing security to the families of the deceased
employees. The salaries of those employed in private sectors have
also increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the Government
would be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one lac.
Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot be
denied that there has been incremental enhancement in the income
of those who are self-employed and even those engaged on daily
basis, monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges posed by
high cost of living, the persons falling in the latter category
periodically increase the cost of their labour. In this context, it
may be useful to give an example of a tailor who earns his
livelihood by stitching cloths. If the cost of living increases and the
prices of essentials go up, it is but natural for him to increase the
cost of his labour. So will be the cases of ordinary skilled and
unskilled labour, like, barber, blacksmith, cobbler, mason etc.
Therefore, we do not think that while making the observations in
the last three lines of paragraph 24 of Sarla Verma's judgment, the
Court had intended to lay down an absolute rule that there will be
no addition in the income of a person who is self-employed or who
is paid fixed wages. Rather, it would be reasonable to say that a
person who is self-employed or is engaged on fixed wages will also
get 30 per cent increase in his total income over a period of time
and if he / she becomes victim of accident then the same formula
deserves to be applied for calculating the amount of
compensation."
9. Thus, even in the absence of any evidence with regard to the future
prospects, the Claimants were entitled to an addition of 30% towards
inflation.
10. As far as multiplier is concerned, although as per the age mentioned in
the Voter Identity Card, the deceased Bal Kishan was aged 42 years on
the date of the accident. In the Voter Identity Card, age is given by
approximation. In the School Leaving Certificate, it is not the age but the
date of birth which is mentioned which in the instant case is 15.07.1974.
Thus, I would prefer the date of birth as mentioned in the School Leaving
Certificate. Therefore taking the age to be 37 years, the appropriate
multiplier would be 15 as against 14 selected by the Claims Tribunal. In
view of the discussion above, the loss of dependency thus comes to
`14,91,750/-(`8,500/- + 30% x 3/4 x 12 x 15)
11. 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.
12. The overall compensation is computed as under:
Sl. Compensation under Awarded by
various heads this Court
No.
1. Loss of Dependency `14,91,750/-
2. Loss to Estate `10,000/- (as
awarded by
the Claims
Tribunal)
3. Loss of Consortium `10,000/- (as
awarded by
the Claims
Tribunal)
4. Funeral Expenses `15,000/- (as
awarded by
the Claims
Tribunal)
5. Loss of Love & Affection ` 25,000/-
Total ` 15,51,750/-
13. It may be noted that the Claims Tribunal awarded interest @ 7.5% per
annum. This accident took place in the year 2011. Rate of interest on
long-term deposit in the year 2011 were in the vicinity of 9% per annum.
In Smt. Dhaneshwari & Anr. v. Tejeshwar Singh & Ors., (MAC.APP.
997/2011) decided on 19.03.2012, 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."
14. Thus, grant of interest @ 7.5% by the Claims Tribunal was on the lower
side. The same is enhanced to 9% per annum. The enhanced
compensation of `1,81,550/- along with difference in the interest shall be
deposited by the Insurance Company with the Claims Tribunal within six
weeks. The entire enhanced compensation shall enure for the benefit of
the Appellant No.3 (Bhagwati, deceased's widow).
15. Both the Appeals are allowed in above terms.
16. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
17. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 07, 2012
pst
