Icici Lombard General Insurance ... vs Smt. Poonam Devi & Ors.
2012 Latest Caselaw 6810 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 29th November, 2012
+        MAC.APP. 1151/2011

         ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.
                                                          ..... Appellant
                       Through: Ms. Neerja Sachdeva, Adv.

                      versus


         SMT. POONAM DEVI & ORS.                  ..... Respondents
                      Through: Mr. Neeraj Kumar, Adv. with
                                Mr. Dinesh Shah, Adv.
                                Mr. Bhupender Chaturvedi, Adv. for R-1
                                to R-5.
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of `9,87,000/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of the Respondents No.1 to 5 for the death of Kedar Prasad Shah who died in a motor vehicle accident which occurred on 29.10.2009.

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 the deceased was working as a rickshaw puller and was earning `10,000/- per month. In the absence of any cogent evidence with regard to deceased's income, the Claims Tribunal took the Minimum Wages of a skilled

worker, that is, `4400/- per month as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act, added 50% towards inflation, deducted one-fourth towards personal and living expenses and applied the multiplier of 14, as per the age of the deceased (41 years) to compute the loss of dependency as `8,32,000/-.

4. The Claims Tribunal further awarded a sum of ` 1,25,000/- towards loss of love and affection (`25,000/- each to all the Claimants) and a sum of `10,000/- each towards funeral expenses, loss of consortium and loss to estate.

5. The following contentions are raised on behalf of the Appellant Insurance Company:-

(i) The deceased was aged 41 years. In the absence of any evidence with regard to future prospects, there could have been addition of only 30% towards inflation. Reliance is placed on Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

(ii) The compensation of `1,25,000/- awarded towards loss of love and affection is excessive and exorbitant.

(iii) The award of interest @ 9% per annum was on the higher side.

6. On the other hand, learned counsel for Respondents No.1 to 5 (the Claimants) urges that the compensation awarded is just and reasonable, particularly in view of the fact that the deceased left four minor children in addition to his widow as his legal representatives.

7. 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 even in the absence of any evidence with regard to future prospects Santosh Devi provides for an increase of 30% towards inflation in the victims income in case of self employed persons and persons having fixed income. 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."

8. Thus, even in the absence of any evidence with regard to the future prospects, the Claimants were entitled to an addition of 30% on account of inflation.

9. The loss of dependency thus comes to `7,20,720/- (4400/- + 30% x 12 x 3/4 x 14) as against a sum of `8,32,000/- awarded by the Claims Tribunal.

10. The Claims Tribunal awarded a sum of `1,25,000/- 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.

11. The Respondents No.1 to 5 are further awarded a sum of `10,000/- each towards loss of consortium, loss to estate and funeral expenses as awarded by the Claims Tribunal.

12. This accident took place in October, 2009 and the Claim Petition was decided by order dated 10.08.2011. The award of interest @ 9% per annum in the circumstances was justified.

13. The overall compensation thus comes to `7,75,720/- as against award of `9,87.000/- made by the Claims Tribunal which shall carry interest @ 9% per annum from the date of filing of the Petition till its payment.

14. The excess amount of `2,12,280/- along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

15. Rest of the compensation shall be disbursed/held in fixed deposit in terms of the order passed by the Claims Tribunal.

16. The Appeal is allowed in above terms.

17. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.

18. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE NOVEMBER 29, 2012 vk