Delhi High Court
Icici Lombard General Insurance ... vs Dayanand Yadav & Ors. on 29 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th November, 2012
+ MAC.APP. 242/2012
ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.
..... Appellant
Through: Ms. Suman Bagga, Adv.
versus
DAYANAND YADAV & ORS. ..... Respondents
Through: Mr. Nitin Yadav, Adv. for R-1 to R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `9,62,000/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of
the Respondents No.1 to 4 for the death of Smt. Sumitra who died in a
motor vehicle accident which occurred on 07.03.2009.
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 carrying household work and was also doing the tailoring
job. The Claims Tribunal observed that no cogent evidence was
produced with regard to the fact that the deceased was doing tailoring
work, yet since the deceased was a housewife, the Claims Tribunal took
the minimum wages of a skilled worker to award loss of dependency. The
Claims Tribunal further awarded a sum of `1,00,000/- towards loss of
love and affection and `10,000/- each towards loss of consortium, loss to
estate and funeral expenses.
4. It is urged by the learned counsel for the Appellant Insurance Company
that the Claimants could not have been awarded compensation on the
basis of minimum wages of a skilled worker. The compensation of
`1,00,000/- awarded towards loss of love and affection is on the higher
side.
5. While granting compensation for loss of gratuitous services rendered by a
housewife in Royal Sundaram Alliance Insurance Co. Ltd. v. Master
Manmeet Singh & Ors., 2012 ACJ 721, this Court noticed following
judgments of the Supreme Court:-
(i) General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC
176,
(ii) National Insurance Company Limited v. Deepika & Ors., 2010 (4)
ACJ 2221,
(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1,
(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,
(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors.,
AIR 1962 SC 1,
(vi) A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,
(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and
(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),
and laid down the principle for determination of loss of dependency on
account of gratuitous services rendered by a housewife. Para 34 of the
judgment in Master Manmeet Singh (supra) is extracted hereunder:-
"34. To sum up, the loss of dependency on account of gratuitous
services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a
Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in
(i), (ii) and (iii) where the age of the homemaker is upto 40
years; the increase will be restricted to 15% where her age
is above 40 years but less than 50 years; there will not be
any addition in the assumed salary where the age is more
than 50 years.
(v) When the deceased home maker is above 55 years but less
than 60 years; there will be deduction of 25%; and when the
deceased home maker is above 60 years there will be
deduction of 50% in the assumed income as the services
rendered decrease substantially. Normally, the value of
gratuitous services rendered will be NIL (unless there is
evidence to the contrary) when the home maker is above 65
years.
(vi) If a housewife dies issueless, the contribution towards the
gratuitous services is much less, as there are greater
chances of the husband's re-marriage. In such cases, the
loss of dependency shall be 50% of the income as per the
qualification stated in (i), (ii) and (iii) above and addition
and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and
living expenses.
(viii) As an attempt has been made to compensate the loss of
dependency, only a notional sum which may be upto `
25,000/- (on present scale of the money value) towards loss
of love and affection and ` 10,000/- towards loss of
consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no
amount should be awarded towards loss of estate."
6. An Appeal being SLP (C) No.19711/2012 filed against the above referred
judgment titled ICICI Lombard General Insurance Company Limited v.
Shiv Kumar & Ors., was dismissed by the Supreme Court by an order
dated 24.07.2012.
7. Thus applying Master Maneet Singh, the loss of gratuitous services
rendered by a housewife would come to `7,97,336/- (4127/- + 15% x 12
x 14).
8. 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 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.
9. The Claimants are further entitled to a sum of `10,000/- each towards
loss of consortium and funeral expenses.
10. In Master Manmeet Singh in Para 34 (ix) it was held that since a
homemaker is not working and thus not earning, no amount should be
awarded towards loss of estate. Thus, no compensation would be payable
to the legal representative of the deceased's housewife towards loss to
estate.
11. The overall compensation thus comes to `8,42,336/- as against award of
`9,62.000/- awarded by the Claims Tribunal.
12. The excess amount of `1,19,664/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
13. Rest of the compensation shall be disbursed/held in fixed deposit in terms
of the order passed by the Claims Tribunal.
14. The Appeal is allowed in above terms.
15. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
16. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 29, 2012
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