Delhi High Court
Tata Aig General Insurance Co Ltd. vs Meena Pal And Ors on 5 April, 2016
$~7 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th April, 2016
+ MAC.APP. 979/2012 & CM No.15498/2012
TATA AIG GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
MEENA PAL AND ORS
..... Respondent
Through: Mr. O P Mainnie, Adv.
+ MAC.APP. 1206/2012
MEENA PAL AND ORS
..... Appellant
Through: Mr. O P Mainnie, Adv.
versus
MOHD. NAUSHAD AND ORS.
..... Respondent
Through: Mr. Sameer Nandwani, Adv. for
insurance
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Narender Pal, aged 40 years, described as a self-employed person,
died as a result of injuries suffered in a motor vehicular accident that
occurred on 15.05.2010 when the motorcycle on which he was riding came
to be involved in a collision with vehicle described as phat-phat sewa
bearing registration No. DL-1Q-0248 (the offending vehicle), statedly
driven in a rash manner by the sixth respondent, it being registered in the
name of the seventh respondent and admittedly insured against third party
risk with the appellant insurance company (the insurer) for the period in
question. His legal heirs (first and fifth respondents) brought an accident
claim case (petition No.343/10) seeking compensation on account of his
death in the said accident, impleading the driver, owner and insurer of the
offending vehicle as parties. Though the driver and owner responded by
filing written statement seeking to contest the claim about the involvement
of the offending vehicle or negligence on the part of the driver, at the
inquiry they would not put in any effective contest nor would appear in the
evidence. The contest essentially was raised by the insurer.
2. By judgment dated 19.07.2012, the tribunal decided the claim case
and awarded Rs.11,23,840/- as compensation with interest at 7.5% per
annum from the date of filing of the petition after holding that the claimants
had proved their case under Section 166 of MV Act.
3. By its appeal (MAC.APP.No.979/2012), the insurer questions the
finding recorded about the involvement of the offending vehicle submitting
that the eye witness Vinod Pal (PW2) was a planted witness, whose word
about the sequence of events could not have been accepted. The insurance
company also questions the calculation of loss of dependency on the
ground that future prospects to the extent of 50% have been wrongly added
over and above the notional income (Rs.5,278/-) assessed on the basis of
minimum wages.
4. Per contra, by their appeal (MAC.APP.No.1206/2012) the claimants
seek enhancement in the compensation submitting that their claim about the
income of the deceased (Rs.15,000/- per month) from the shop of paan and
cigarette, as started by the first claimant (Meena Pal) on the strength of
affidavit (Ex.PW1/X), should have been accepted. It is also the grievance
of the claimants that the award of non-pecuniary damages in the sum of
Rs.10,000/- each for loss of consortium, loss of estate and funeral expenses
and Rs.25,000/- towards loss of love & affection and interest are
inadequate.
5. Having heard both sides and having gone through the tribunal's
record this Court does not find any substance in the plea with regard to the
proof of involvement of negligence on the part of the owner and its driver.
The evidence of PW2 cannot be disbelieved only because his presence was
not noted in the first information report (FIR) by the police, which had
registered a case immediately after the collision. The witness has given
sufficient explanation for his absence at that stage to the effect that he had
gone to inform the next of the kin of the victim. Noticeably, the driver of
the offending vehicle did not step into the witness box. In these
circumstances, there is no reason why the evidence of PW2 should be held
as suspect.
6. This court has carefully gone through the evidence on record but
finds that there is no escape from assuming the income of the deceased on
the basis of minimum wages prevalent at the relevant point of time, as done
by the tribunal. The claim of Rs.15,000/- per month as the income is not
supported by requisite documentary evidence. Mere reference to one stray
receipt of school fee or of the electricity bill cannot be sufficient.
7. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled
that the element of future prospects of increase in income will not be
granted in cases where the deceased was "self employed" or was working
on a "fixed salary". Though this view was affirmed by a bench of three
Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & Anr.,
(2013) 9 SCC 65, on account of divergence of views, as arising from the
ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was
later referred to a larger bench, inter-alia, by order dated 02.07.2014 in
National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
8. Against the above backdrop, by judgment dated 22.01.2016 passed in
MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.), this Court has
found it proper to follow the view taken earlier by a learned single judge in
MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v.
Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the
decision in Reshma Kumari (Supra) as the binding precedent, till such time
the law on the subject of future prospects for those who are "self-
employed" or engaged in gainful employment at a "fixed salary" is clarified
by a larger bench of the Supreme Court.
9. The deceased being admittedly a self-employed person, the loss of
dependency has to be worked out without adding the element of future
prospects. Since the deceased was 40 years old and is survived by five
dependent members of his family, the deduction of 1/4 th towards personal
& living expenses has to be made and the multiplier of 15 has to be applied.
In this view, the monthly loss of dependency comes to (5278 x 3 ÷ 4)
Rs.3,959/- and the total loss of dependency loss of dependency comes to
(3959 x 12 x 15) Rs.7,12,620/-, rounded of to Rs.7,13,000/-.
10. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of Rs.1 lakh each on account of loss of love &
affection and loss of consortium and Rs.25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation payable in the
case is computed as (7,13,000 + 2,50,000) Rs. 9,63,000/-.
11. Following the consistent view taken by this Court [see judgment
dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v.
Sangeeta Devi & Ors.], the rate of interest is increased to 9% per annum
from the date of filing of the petition till realization.
12. The award is modified accordingly.
13. By order dated 05.09.2012, the insurance company have been
directed to deposit 50% of the awarded amount with proportionate interest
with the Registrar General which was directed to be held in fixed deposit
for a period of six months to be renewed from time to time. By subsequent
order dated 24.01.2014, the said deposited amount was allowed to be
released to the claimants in terms of the award of the tribunal.
14. The insurance company is now directed to deposit the balance
towards liability under the award modified as above with the tribunal
within 30 days whereupon the same shall also be released in accord with
the apportionment granted by the tribunal.
15. Statutory amount, if deposited by the insurance company, shall be
refunded.
16. Both appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 05, 2016
VLD
