Delhi High Court
Bajaj Allianz General Insurance ... vs Sita And Ors. on 7 April, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th April, 2016
+ MAC.APP. 422/2015 & CM Nos.9167/2015 and 18055/2015
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mr. Rajat Brar, Adv.
versus
SITA AND ORS. ..... Respondent
Through: Mr. Jatinder Kamra, Adv. for R-1 to
R-9
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sumiran was travelling in a tractor bearing registration No.HR 10G
3015 (offending vehicle), loaded with fodder (bhoosa), on 05.07.2008
when it met with an accident at about 6 AM in the area of Sri Nagar, Delhi
resulting in his death. The dependent family members of Sumiran, first to
ninth respondents (claimants), brought accident claim case (MACT
No.133/2014) on 14.08.2008 seeking compensation impleading the
appellant insurance company as one of the party respondents, it admittedly
having issued an insurance policy covering third party risk for the period in
question in respect of the offending vehicle in the name of the registered
owner of the offending vehicle (Rattan Singh, since deceased) now
represented by his legal heirs. In addition to the insurer, the driver and
registered owner were impleaded as parties.
2. The tribunal, by judgment dated 13.03.2015, upheld the case of the
claimants that accident had occurred due to negligence on the part of the
tenth respondent herein (driver), and awarded compensation in the sum of
Rs.5,89,524/- with interest at 9% per annum, which includes Rs.1 lakh each
towards loss of consortium and loss of love and affection, Rs.30,000/-
towards funeral expenses, besides loss of dependency. In computing the
loss of dependency, the tribunal assumed the notional income of the
deceased at Rs.3,633/- per annum, equivalent to the minimum wages, and
added 30% towards future prospects, applying the multiplier of 13, (since
the deceased was 48 years old), after deduction of 1/5th towards personal &
living expenses.
3. The insurance company which has been fastened with the liability
presses the appeal against the award on basis of two contentions; first that
the addition of future prospects was improper and, second, that the
deceased was a gratuitous passenger and, therefore, not covered by third
party risk.
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 SCC166.
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 the evidence would not show any regular income and there is
no proof of any periodic rise in earnings, the element of future prospects
has to be kept out of consideration. The monthly loss of dependency, after
deducting 1/5th towards personal and living expenses comes to (3,633 x 4 ÷
5) Rs.2,906.4. On the multiplier of 13, the loss of dependency comes to
(2,906.4 x 12 x 13) Rs.4,53,398/-, rounded off to Rs.4,54,000/-. Adding the
non-pecuniary damages the total compensation comes to (4,54,000 +
2,30,000) Rs.6,84,000/-. The award is reduced accordingly. It shall,
however, carry interest as levied by the tribunal.
7. The second contention of the insurance company must be rejected for
the reason the evidence shows that the deceased was travelling with goods
carried at the instance of his employer.
8. By order dated 27.05.2015, the insurance company had been directed
to deposit 50% of the of the awarded amount with proportionate interest
which was directed to be held in fixed deposit receipt with UCO Bank,
Delhi High Court Branch for a period of one year. The Registrar General
shall now calculate the amount payable to the claimants in terms of the
award modified as above and release the same from out of the deposit made
by the insurance company in terms of the said earlier order, refunding
excess, if any, and directing the insurance company to pay further, if there
is a shortfall, within 30 days from today.
9. The statutory amount, if deposited, shall be refunded.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 07, 2016
VLD
