Bharti Axa General Insurance Co ... vs Smt Pinki & Ors
2013 Latest Caselaw 4220 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 17th September, 2013


+      MAC.APP. 592/2012

BHARTI AXA GENERAL INSURANCE CO LTD..... Appellant
                      Through: Ms. Suman Bagga, Adv.

                             versus


SMT PINKI & ORS                                        ..... Respondents
                                      Through: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Instant appeal has been preferred against the impugned award dated 23.04.2012 whereby, ld. Tribunal has granted compensation for a sum of Rs.18,60,464/- with interest @ 9% from the date of institution of the petition till realization.

2. Ld. Counsel for the appellant has argued that the claimants have failed to establish that the deceased was working as a Mason. However, believing on the bald statement of the claimants, ld. Tribunal has considered the monthly salary of the deceased as Rs.7,826/- per month as per the minimum wages for skilled person.

3. Ld. Counsel further submits that ld. Tribunal has erred in awarding future prospects of 50% contrary to the dictum of Sarla Verma v. DTC and Ors. 2009 (6) SCC 121

4. Third issue argued by the ld. Counsel for the appellant is that ld. Tribunal has wrongly granted Rs.31,000/- counsel's fee as there is no such provision in the Motor Vehicles Act.

5. As the issue of Counsel's fee is concerned, it has been decided by this court in the case of ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi & Ors. in MAC. A. 645/2012. Therefore, in view of the judgment passed by this court, counsel's fee cannot be granted as the same is contrary to Motor Vehicles Act. Therefore, the impugned award is set aside so far as the counsel's fee is concerned.

6. On the issue of the deceased being Mason, wife of the deceased has deposed that he was 32 years of age at the time of accident. He was self- employed, working as a Mason and earning Rs.20,000/- per month. However, she could not produce any proof of his income. Therefore, in the absence of any proof, ld. Tribunal has rightly assessed the salary of the deceased as Rs.7,826/- per month on the basis of Minimum Wages Act applicable to skilled persons. There is no cross by the appellant on the issue as to whether he was working as a Mason. Moreover, no evidence was led by the appellant to disprove the same.

7. Therefore, ld. Tribunal has not considered the salary of Rs.20,000/- p.m. as a Mason and granted the compensation as per the minimum wages applicable to skilled persons.

8. As the issue of future prospects is concerned, this has been decided by the Full Bench of the Supreme Court in the case of Rajesh & Ors. Vs. Rajbir Singh, 2013 (6) SCALE 563.

9. Keeping in view the dictum of the aforesaid judgment, I am of the considered opinion that ld. Tribunal has rightly added 50% future prospects as the age of the deceased was 32 years at the time of accident.

10. In view of the above, appeal is partially allowed.

11. Compensation amount (less counsel's fee) with interest accrued thereon be released in favour of the respondents / claimants.

12. Excess amount, if any, with proportionate interest be also released in favour of the appellant with statutory amount.

CM. No. 9700/2012 With the disposal of the appeal itself, this application has become infructuous. The same is accordingly disposed of.

SURESH KAIT, J SEPTEMBER 17, 2013 Jg/RS