Delhi High Court
Oriental Insurance Co. Ltd. vs Smt. Kishan Devi& Ors on 5 April, 2016
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th April, 2016
+ MAC.APP. 1010/2013
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
SMT. KISHAN DEVI& ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Ompal @ Om Dass, aged 38 years, died as a result of injuries suffered
in a motor vehicular accident that had occurred on 25.07.2010 involving
negligent driving of motor vehicle described as truck bearing registration
No. HR 38N 1055 (the offending vehicle) by the fifth respondent, it being
registered in the name of fourth respondent and admittedly insured with the
appellant insurance company (insurer) against third party risk for the period
in question.
2. On the claim petition brought by his dependent family members (first
to third respondents), registered as Suit No. 374/2010, the motor accident
claims tribunal (tribunal), by judgment dated 05.08.2013, awarded
compensation in the sum of ₹ 10,05,480/- with interest @ 9% per annum
from the date of filing of the petition till realization, the said amount
inclusive of ₹ 1,00,000/- towards loss of love & affection, ₹ 10,000/-
towards loss of estate and ₹ 25,000/- towards funeral expenses besides ₹
8,70,480/- towards loss of dependency.
3. The insurer, which has been fastened with the liability to pay,
questions the calculation of loss of dependency through the appeal at hand.
It points out that the tribunal assumed the income of the deceased at ₹
6,448/- per month, it being the minimum wages payable to a skilled worker
at the relevant point of time, choosing the multiplier going by the age of the
deceased, adding the element of future prospects of increase to the extent of
50%. It is argued that since the deceased was a bachelor, the multiplier
should have been adopted on the basis of age of the mother (58 years) and of
the father (60 years) at the relevant point of time. Per contra, the claimants
are aggrieved stating that the award of ₹ 10,000/- towards loss of estate is
inadequate. [Shashikala V. Gangalakshmamma (2015) 9 SCC 150]
4. 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.
5. 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.
6. Since there is no proof of periodic rise in the income, the loss of
dependency must be worked out on the basis of minimum wages of ₹
6,448/- without adding the element of future prospects. It is well-settled that
the multiplier has to be adopted to calculate the loss of dependency having
regard to the age of the deceased or the claimant whichever is high. Since
the deceased was a bachelor, 50% has to be deducted towards personal and
living expenses. Therefore, the monthly loss of dependency is worked out at
(6448 ÷2) ₹ 3,224. The total loss of dependency in the case comes to
(3,224 x 12 x 9) ₹ 3,48,192 rounded off to ₹ 3,50,000/-. Raising the award
towards loss to estate by ₹ 25,000 and adding ₹ 1,00,000/- towards loss of
love & affection and ₹ 25,000/- towards funeral expenses as already
awarded by the tribunal, the total compensation in the case is computed as
(3,50,000 + 1,50,000) ₹ 5,00,000/-. The compensation is reduced
accordingly. Needless to add, it shall carry interest as levied by the tribunal.
7. By order dated 08.11.2013, 80% of the awarded amount was released
from out of the entire awarded compensation with upto date interest
deposited by the insurer. By order dated 03.01.2014, it was brought to the
notice of the Court that the awarded amount had already been realized by the
tribunal through attachment. Thus, the balance 20% would still be lying
with the tribunal. It shall be refunded forthwith to the insurer (appellant).
The insurer is at liberty to take out appropriate proceedings to recover
excess which appears to have been released to the claimants.
8. Statutory deposit, if made, shall be refunded.
9. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 05, 2016
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