Delhi High Court
Oriental Insurance Company Ltd. vs Mohd. Sharafat & Ors. on 4 July, 2014
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 4th July, 2014
+ MAC.APP. 530/2014
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Represented by: Mr.V.K.Gupta, Advocate.
Versus
MOHD. SHARAFAT & ORS. ..... Respondents
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CM No.10219/2014 (for exemption)
Exemptions allowed, subject to all just exceptions.
The application stands disposed of.
MAC.APP. 530/2014
1. The present appeal is preferred against the impugned award dated
15.03.2014, whereby the learned Tribunal has granted compensation for an
amount of Rs.16,56,550/- with interest at the rate of 9% per annum from the
date of filing of the claim petition till realization of the amount.
2. Mr.V.K.Gupta, learned counsel appearing on behalf of the
appellant/Insurance Company submits that the deceased, Mohd. Usman was
38 years of age on the date of the accident, i.e., 01.09.2012. The claimants
claimed that the deceased was in the business of selling fish and was earning
around Rs.20,000/- per month from the said business. Since the claimants
failed to prove the avocation and income of the deceased, therefore, keeping
in mind the Minimum Wages Act, 1948, the learned Tribunal has assessed
the income of the deceased as Rs.7020/- per month applicable to an
unskilled worker at the prevalent time.
3. Learned counsel further submits that the learned Tribunal has erred in
adding 50% of the income of the deceased in his actual income towards
future prospects being contrary to the settled law as the deceased was not in
permanent employment.
4. To support his submissions, he has relied upon the case of Sarla
Verma & Ors.Vs. DTC & Anr., (2009) 6 SCC121, which has been further
affirmed by the Full Bench of the Apex Court in the case of Reshma
Kumari & Ors. Vs. Madan Mohan & Anr., delivered in Civil Appeal No.
4646 of 2009 on 02.04.2013.
5. Learned counsel further submits that the compensation granted by the
learned Tribunal towards non-pecuniary damages, such as for loss of love
and affection and loss of consortium Rs.1,00,000/- each and for funeral
expenses Rs.25,000/- is on higher side. He submits that though it is the
discretion of the Tribunals to award compensation under non-pecuniary
damages, however, the learned Tribunal ought to have considered the facts
and circumstances of the case in order to grant just compensation. He
submits that the deceased was in the business of selling fish, he left behind a
widow, one son, one daughter and parents, therefore, there was no occasion
to grant such higher compensation on account of non-pecuniary damages.
6. So far as the issue regarding income of the deceased is concerned, as
claimed, the deceased was in the business of selling fish and was earning
about Rs.20,000/- per month. Moreover, PW2, Sharafat Hussain, deposed
that he was earning Rs.10,000/- to Rs.12,000/- per month from the said
business.
7. Since no document regarding the financial status of the deceased was
produced on record, however, PW2 in his cross-examination deposed that
the deceased was selling fish on the roadside, hence, the learned Tribunal
has assessed his monthly income as Rs.7020/- as applicable to an unskilled
worker as per the Minimum Wages Act, 1948.
8. As far as the issue of future prospects is concerned, the same has been
dealt with by this Court in the case bearing MAC. APP. No.846/2011 titled
as ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors.,
decided on 30.09.2013, wherein held as under:-
"22. The Apex Court in Rajesh has discussed the issue regarding
the assessment of future prospects; and has also come to a specific
conclusion that the self-employed or persons with fixed wages are
entitled for future prospects. The Apex Court succinctly specified
the reasons for the same considering the socio-economic changes
in the society. It also made thrust on the age of the deceased as
one of the factors for computing the future prospects.
23. I note, the Apex Court in Santosh Devi noted the finding in
Sarla Verma; and canvassed a different reasoning regarding the
assessment of future prospects: one of the factors in the
multiplicand.
24. The Apex Court in Santosh Devi, did not refer the matter to
a Larger Bench, whereas it followed all the principles formulated
in Sarla Verma except the finding in respect of the assessment of
future prospects for the persons falling under the category of self-
employment / fixed wages.
25. It is legally significant to note the dictum laid down by the
Constitution Bench of Apex Court in Central Board of Dawoodi
Bohra Community and Anr. (Supra). The Apex Court held as
under:
"12. Having carefully considered the submissions made by the
learned senior counsel for the parties and having examined the
law laid down by the Constitution Benches in the abovesaid
decisions, we would like to sum up the legal position in the
following terms :-
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot doubt the
correctness of the view of the law taken by a Bench of
larger quorum. In case of doubt all that the Bench of
lesser quorum can do is to invite the attention of the
Chief Justice and request for the matter being placed
for hearing before a Bench of larger quorum than the
Bench whose decision has come up for consideration.
It will be open only for a Bench of coequal strength to
express an opinion doubting the correctness of the
view taken by the earlier Bench of coequal strength,
whereupon the matter may be placed for hearing
before a Bench consisting of a quorum larger than the
one which pronounced the decision laying down the
law the correctness of which is doubted."
26. While considering the case of Santosh Devi, the Apex Court
did not feel to refer the matter to a Larger Bench. Therefore, it can
be concluded that there is no contradictions in the finding of Sarla
Verma and Santosh Devi, in turn the Apex Court extended the
scope and ambit of Sarla Verma through Santosh Devi.
27. In view of above, this court is guided by the legal principles
as set out in Reshma Kumari and Rajesh in order to assess the
just compensation as it is envisaged in Section 168 of Motor
Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed
the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme
Court has agreed with the dictum of Santosh Devi. Specifically,
for the assessment of future prospects in respect of the persons
falling under the category of self-employment / fixed wages this
court is guided by the dictum laid down in Rajesh. In my
considered opinion, there is no contradiction in the dictum laid
down by the Apex Court in the cases of Reshma Kumari and
Rajesh."
9. Admittedly, the deceased was aged 38 years on the date of the
accident. He was maintaining a big family comprising of a widow, two
minor children and old parents. PW2 has deposed that deceased was
earning around Rs.10,000/- to Rs.12,000/- from the business of selling fish.
Thus, keeping in mind the Minimum Wages Act, 1948, the learned Tribunal
has assessed the monthly income of the deceased as Rs.7020/- as applicable
to an unskilled worker at the relevant time
10. Therefore, keeping in mind the view taken by this Court in the case of
Angrej Singh & Ors. (supra) while relying upon the dictum of the Supreme
Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6)
SCALE 563), the age of the deceased, i.e., 38 years at the time of accident
and the facts and circumstances of the case, I find no merit in the
submissions of the learned counsel on the issues of income of the deceased
as well as addition of 50% future prospects in his actual income.
11. As regards the issue of compensation granted towards non-pecuniary
damages being on higher side is concerned, the deceased died at the young
age of 38 years. Due to his death, his young widow lost the association of
her husband and enjoyment of life, two minor children, i.e., one son and one
daughter have lost the love, affection and care of their father and his
guidance for their future career, parents also deprived of love and affection
of their son and have lost the support in their old age.
12. Keeping in view the size of the family and dependency upon the
deceased, I find no discrepancy in the award granting compensation towards
non-pecuniary damages.
13. Hence, finding no merits in the appeal, the same is dismissed in
limine.
14. Consequently, the Registry of this Court is directed to release the
statutory amount in favour of the appellant/Insurance Company and the
compensation with upto date interest in favour of the respondents/claimants
in terms of the award dated 15.03.2014 passed by the learned Tribunal on
taking necessary steps by them.
CM.No. 10218/2014 (for stay)
With the dismissal of the appeal itself, the instant application has
become infructuous. The same is accordingly dismissed.
SURESH KAIT, J.
JULY 04, 2014/sb
