Delhi High Court
The Oriental Insurance Co. Ltd. vs Bindu Chaudhary& Ors on 7 April, 2016
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th April, 2016
+ MAC.APP. 264/2015 & CMNo. 4679/2015
THE ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
BINDU CHAUDHARY& ORS ..... Respondents
Through: Mr. A.K. Chaudhary, Adv. for R-1 &
2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Gulshan Kumar, aged 16 years, a bachelor, died in a motor vehicular
accident that had occurred on 06.10.2010 due to accident caused by a bus
bearing no. UP 14 R 7432, admittedly insured against third party risk with
the appellant insurance company (insurer). His parents (first and second
respondents) instituted accident claim case (Suit No. 619/2010) on
15.12.2010 which was decided on 05.01.2015 by motor accident claims
tribunal (the tribunal) upholding the case of respondents and awarding
compensation in the sum of Rs. 8,47,530/- with interest @ 9% per annum
calculating it thus:-
Loss of financial dependency ₹ 7, 12, 530/-
Loss of Love and affection ₹ 1, 00, 000/-
Loss of Estate ₹ 10,000/-
Funeral Expenses ₹ 25,000/-
Total ₹ 8, 47,530/-
2. For calculating the loss of dependency, the tribunal assumed the
income notionally at Rs. 5,278/- per month which is equivalent to the
minimum wages payable to an unskilled worker at the relevant point of time.
The tribunal added 50% towards future prospects, worked out the loss after
deducting 1/2 of the said amount towards personal & living expenses.
3. The only ground urged in the appeal is against the addition of future
prospects.
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 the income was notionally assessed on minimum wages, there is
no case made out for future prospects to be added. Thus, the monthly loss
comes to (5278÷ 2) Rs. 2639. The multiplier of 15 was correctly adopted
inasmuch as the age of the father (first claimant) at the relevant point of time
was 40 years and of the mother (second claimant) was 33 years. Thus, the
total loss of dependency is calculated at (2639 x 12 x 15) Rs. 4,75,020/- ,
rounded off to Rs. 4,76,000/-. Adding the other components of
compensation, the total compensation comes to (4,76,000 + 1,35,000) Rs.
6,11,000/-. Needless to add, it shall carry interest as levied by the tribunal.
The award is modified as above.
7. By order dated 26.03.2015, 80% directed to be deposited was allowed
to be released. The insurance company shall deposit the balance with the
tribunal within 30 days whereupon it shall be released to the claimant.
8. Statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
APRIL 07, 2016
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