Reliance General Insurance Co Ltd vs Shiv Kumari & Ors
2014 Latest Caselaw 5700 Del

$~10 & 11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of decision: 12.11.2014
+        MAC.APP. 655/2011 and CM No. 13285/2011
         RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                         Through  Mr. P.K. Seth, Advocate
                  versus
         SHIV KUMARI & ORS                          ..... Respondents
                         Through  Mr. Anshuman Bal, Adv. for R-1 to 6
                                  Mr. Pawan Sharma, Adv. for R-7 & 8
+        MAC.APP. 106/2012
         SHIV KUMARI & ORS                          ..... Appellants
                         Through  Mr. Anshuman Bal, Advocate
                  versus
         RELIANCE GENERAL INSURANCE CO LTD ..... Respondent
                         Through  Mr. P.K. Seth, Advocate

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By this order I will dispose off two appeals. MAC Appeal No. 655/2011 is filed by the insurance company seeking to impugn the Award dated 9 th March, 201.1 MAC Appeal No. 106/2012 is filed by the claimants seeking enhancement of compensation as granted by the Award dated 9th March, 2011.

2. The brief facts which led to the filing of the claim petition under Section 166/140 of Motor Vehicle Act, 1988 are that on 14th June, 2010 at about 9.00 p.m., the deceased Shri Rana Pratap suffered fatal injuries in a road accident which took place in front of Sidharath Dharam Kanta, Rohtak Road, Nangloi, Delhi.

3. Based on the evidence on record, the Trial Court came to the conclusion that the accident took place due to the rash and negligent driving of the driver of the

offending vehicle i.e. respondent no. 7. On compensation, the Tribunal awarded the total sum of Rs. 11,37,542/-. Rs. 9,97,542/- was awarded towards loss of dependency; Rs. 25,000/- towards funeral charges, Rs. 1,00,000/- towards love and affection; Rs. 10,000/- for loss of consortium and Rs. 5,000/- towards loss of estate.

MAC Appeal No. 655/2011

4. By this order, I will dispose of the appeal filed by the insurance company. Learned counsel appearing for the insurance company has made four submissions impugning the Award. He firstly submits that there is no evidence on record to say that the deceased was gainfully employed in any employment. He submits that the Tribunal has, without any evidence, assessed the wages of the deceased based on the Minimum Wages Act at Rs. 5278/-. He submits that Minimum Wages Act only applies to those who are engaged in the scheduled employment as per the Act and thus, the same would have no application to the facts and circumstances of the present case. He further submits that assuming the action of adopting minimum wages was correct, the deceased on the date of accident was 45 years old. The Tribunal has enhanced the assumed salary by 50% for computing loss of dependency on account of future prospects which is contrary to various judgments of this Court where on account of age of the deceased, the enhancement could have been made only to the extent of 30% and not 50%.

5. Learned counsel further submits that the deceased was survived only by dependents namely his wife, mother and one minor daughter. He submits that two children of the deceased, who are shown as dependents, are actually major and not dependent upon the deceased. Hence he submits that the Tribunal has

wrongly deducted 1/4th of the assessed income towards personal expenses whereas keeping in view that most of the legal heirs of the deceased were majors and there were only three dependents; the Tribunal should have deducted 1/3rd only.

6. Counsel for the appellant lastly submits that though recovery rights have been given to the insurance company but still it is not clarified in the Award that the recovery rights were granted against whom.

7. It is true that Minimum Wages Act is applicable only in the facts and circumstances as envisaged in the Act. Tribunals have been using the prescribed wages as per the Minimum Wages Act where the claimants have failed to produce on record proper evidence and documents to show what the deceased was earning. The stipulated minimum wages are used as a mere guiding factor. The approach of the Tribunal in such facts and circumstances is in order. There are no reasons to disagree with the finding of the Award assessing the wages of the deceased based upon the Minimum Wages Act.

8. I may note that PW-1 Smt. Shiv Kumari in her evidence by way of affidavit has stated that her husband was doing private service and was earning Rs. 12,000/- per month. She has reiterated this in her cross-examination. In the light of the evidence on record by PW-1, which is not contradicted in any manner, there is sufficient evidence on record to show that the deceased was employed in the private sector. As no documentary evidence was filed to support this contention, the Tribunal rightly took applicable minimum wages under the Act.

10. On future prospects, the Supreme Court in the case of Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 has held that in the case of those

who are in the age group of 40-50 years, future prospects @ 30% should be awarded. In the present case, the Tribunal has awarded future prospects at the rate of 50% and enhanced the assessed minimum wages. The deceased was 45 years old. Accordingly, the impugned Award is modified to the extent that the salary of the deceased has been computed on the basis of Minimum Wages Act and the same is enhanced by 30% for future prospects for computing loss of dependency.

11. As far as the issue of the dependents of the deceased are concerned, learned counsel appearing for the claimants has pointed out that apart from the mother, the widow and the minor daughter, his other two children are also dependents upon the deceased. He has one daughter aged 22 years and a son aged 20 years and both were studying on the date of accident.

12. PW-1 in her affidavit by way of evidence has narrated that the deceased was survived by six legal heirs. There is no cross-examination of PW-1 as to whether the two children of her are employed and settled or not. Keeping in view the un-rebutted evidence on record of PW-1, in my opinion, there are no reasons to interfere with the Award deducting 1/4th income assessing personal expenses of the deceased.

13. On the contention of recovery rights, a perusal of the para 24 of the Award shows that the Tribunal has noted that the driver of the offending vehicle was driving a commercial vehicle whereas he was authorized to drive only non- transport vehicle which is contrary to the terms and conditions of the policy. Hence the recovery rights would be against the owner and the driver of the offending vehicle namely respondent nos. 7 and 8 before this Court.

14. In view of the above, the appeal stands disposed of. The statutory

amounts, if any, deposited by the appellant be refunded to the appellant.

14. The interim orders stand vacated.

MAC.APP. 106/2012

15. By this order, I will dispose of the appeal filed by the claimants.

16. Learned counsel for the claimants has made only two submissions. He firstly submits that the Tribunal has wrongfully assessed the salary of the deceased based on the Minimum Wages Act pertaining to unskilled workers whereas the deceased was IX class passed and hence, entitled to minimum wages for a non-matriculate. He secondly submits that non-pecuniary damages have been awarded on a lower price.

17. As far as the educational qualification of the deceased are concerned, the school leaving certificate which was filed along with the DAR, shows that the deceased was IX class passed. It shows that the original school leaving certificate has been issued by the Govt.Senior Secondary School, Nangloi, Delhi.

18. In view of the above, the applicable minimum wages would be those which are applicable to non-matriculate i.e. the same would be Rs. 5850/-. Hence, the loss of dependency amounts to Rs.9,58,272/-[Rs.(5850 + 30% - ¼ ) x 12 x 14 ]

19. Coming to the issue of non-pecuniary damages as far as loss of consortium is concerned, the Tribunal has awarded Rs. 10,000/- for loss of consortium. I enhance the same to Rs. 1 lakh. In my opinion, no other increase would be required in the facts and circumstances of the present case.

20. The total compensation now works out to Rs.11,88,272/- as follows:-

                  Loss of dependency                    9,58,272/-
                  Funeral expenses                      25,000/-


                 Loss of love and Affection             1,00,000/-
                Consortium                             1,00,000/-
                Loss of estate                         5,000/-
                                 Total                 11,88,272/-

The above compensation is just and reasonable in the facts and circumstances of the present case.

21. The insurance company shall deposit the additional compensation amount as directed in the above order along with interest @ 7.5% per annum from the date of filing of the claim petition till deposit of the amount with the Registrar General of this Court. On receipt of the said amount, the entire amount would be released to the claimant Smt. Shiv Kumari.

22. Vide interim order dated 22nd July, 2011, the appellant was directed to deposit the entire awarded amount along with upto date interest with the Registrar General of this Court. On 16th January, 2012, it was directed that 60% of the award amount along with proportionate interest be released to the claimants during the pendency of the appeal. In view of this, the balance amount along with proportionate interest shall now be released to the claimants in the same manner as directed by the Tribunal.

23. The appeal stands disposed of.

JAYANT NATH, J NOVEMBER 12, 2014 sd