Tata Aig General Insurance Co. Ltd vs Shaheena & Ors.
2015 Latest Caselaw 1075 Del

Citation : 2015 Latest Caselaw 1075 Del
Judgement Date : 5 February, 2015

Delhi High Court

Tata Aig General Insurance Co. Ltd vs Shaheena & Ors. on 5 February, 2015

Author: G.P. Mittal

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 5th February, 2015
+        MAC.APP.1070/2012
         TATA AIG GENERAL INSURANCE CO. LTD ..... Appellant
                      Through: Mr. K.L. Nandwani, Adv.

                           versus

         SHAHEENA & ORS.                                  ..... Respondents
                      Through:          Nemo.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

G. P. MITTAL, J. (ORAL)

1. This appeal is for reduction of compensation of Rs.7,12,504/- awarded

by the Motor Accident Claims Tribunal (the Claims Tribunal) in

favour of six Respondents/Claimants, who are the daughters of

deceased Iqram Ahmed, who died in a motor vehicular accident which

occurred on 29.05.2008.

2. During inquiry before the Claims Tribunal, it was claimed that

deceased Iqram Ahmed was dealing in building material and was

earning Rs.10,000/- per month. A pass book was also produced to

prove withdrawal of Rs.30,000/-, yet no evidence was produced to

show that the deceased was doing the business of building material.

The Claims Tribunal therefore, took the minimum wages of a semi-

skilled worker, deducted 1/5th towards personal and living expenses,

relying on Santosh Devi v. National Insurance Company Limited &

Ors., Civil Appeal No.3723/2012, decided on 23.04.2012 added 30%

towards future prospects and awarded a sum of Rs.40,000/- towards

non-pecuniary damages to compute the overall compensation of

Rs.7,12,504/-.

3. Following contentions are raised by the learned counsel for the

Appellant Insurance Company:-

(i) Two of the six Respondents/Claimants were married and

therefore, actual number of dependents were four. There should

have been deduction of 1/4th towards personal and living

expenses;

(ii) Addition of 30% towards future prospects was not justified.

Reliance is placed on the judgment of the Supreme Court in

Reshma Kumari & Ors. V. Madan Mohan & Anr., (2013) 9 SCC

65 and a judgment of this Court in HDFC ERGO General

Insurance Co. Ltd. v. Smt. Lalta Devi & Ors., MAC. APP.

189/2014 decided on 12.01.2015; and

(iii) In the absence of any proof of business, the minimum wages of

an unskilled worker ought to have been taken to compute the

loss of dependency.

4. In order to prove the employment of deceased, Shaheena swore

Affidavit Ex.PW-1/A and entered the witness box as PW-1. As stated

earlier, the Respondents claimed that their father deceased Iqram

Ahmed was dealing in building material and was earning Rs.10,000/-

per month. There is no documentary evidence with regard to proof of

income. The Appellant Insurance Company went to the extent of

disputing the Ration Card placed on record by the Respondents and

gave a suggestion that the ration card was forged and fabricated. But

no evidence was produced by the Insurance Company that the Ration

Card was forged. Although, no documentary evidence was produced

with regard to business and the income, but no suggestion was given

that the deceased was not dealing in building material.

5. In view of this, in my view, the Claims Tribunal ought to have made

some assessment to determine the income of the deceased as a

supplier of building material and atleast ought to have taken the

minimum wages of a skilled worker instead of a semi-skilled worker.

6. It is true that two of the daughters, namely, PW-1 Shaheena and Soni

were married, yet PW-1 Shaheena has stated that she was all along

staying with her siblings. She denied the suggestion that she was

living with her husband. With regard to Soni, she admitted that

sometimes she lives with her husband at Modi Nagar and sometimes

with her parents at Delhi.

7. The contention with regard to deduction towards personal and living

expenses was raised before the Claims Tribunal and the Claims

Tribunal consciously deducted 1/5th towards personal and living

expenses on the ground that the other siblings were very young (minor

daughters), one of the married sister was regularly staying with the

siblings and the other was staying with them off and on. The Claims

Tribunal reasoned as under:-

"9 The petitioners, most of whom are minors, cannot be faulted for the above as the mother has already pre- deceased and consequent to the demise of the deceased as is reported on record, the old aged grand-father has also died. In the circumstances above, dependency of all the petitioners is to be presumed as despite the fact that the elder two daughters though have admittedly married, are left with no option but to stay with their younger siblings who are as young as 8-10 years when deceased Ikramudin passed away."

8. The Claims Tribunal opined that since the mother of the Respondents

had pre-deceased and the aged grandfather had died subsequent to the

death of deceased Iqram Ahmed, deduction towards personal and

living expenses should be 1/5th.

9. I will appreciate the view taken by the Claims Tribunal for

determining loss of dependency, deduction towards personal and

living expenses was rightly taken as 1/5th.

10. Since the deceased was not in any settled employment or business

addition of 30% towards future prospects was not justified in view of

the judgment of the Supreme Court in Reshma Kumari & Ors. V.

Madan Mohan & Anr., (2013) 9 SCC 65 and a judgment of this Court

in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi &