Delhi High Court
The Oriental Insurance Co Ltd vs Susheela Devi & Ors on 27 April, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th April, 2016
+ MAC.APP. 621/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. A. K. Soni, Adv.
versus
SUSHEELA DEVI & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Dhukhi Mukhia, 36 years old, died in a motor vehicular accident that
occurred on 27.04.2011 involving negligent driving of truck bearing
registration no.DL-1GB-2186 (the offending vehicle), admittedly insured
against third party risk with appellant/insurance company (the insurer). The
dependant family members of the deceased instituted an accident claim case
under Sections 166 & 140 of the Motor Vehicles Act, (the MV Act) on
06.06.2011, registered as case no.03/2012 impleading, besides the driver and
owner of the offending vehicle, the insurer. The tribunal held inquiry and
passed judgment dated 26.05.2014 upholding the case for compensation
under Section 166 of the MV Act. It awarded compensation in the total sum
of `15,35,455/- with interest at the rate of seven & half percent (7.5%) per
annum which includes `13,00,455/- towards loss of dependency, `1,00,000/-
each towards care and guidance, `25,000/- towards funeral expenses and
`10,000/- towards loss of estate.
2. The insurer, by appeal at hand, questions the calculation of loss of
dependency wherein the tribunal after assuming the income (`6422/-) on the
basis of monthly minimum wages had added element of 50% towards future
prospects. The claimant through counsel, on the other hand, submits that the
award under the head of loss of estate and interest rate are unduly low.
3. 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.
4. 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. This applies to the matter at hand because the
claimant here pleaded about gainful employment at a fixed salary and has
not led any evidence showing the salary was subject to any periodic
increase.
5. Since there was no proof of progressive rise in the income, future
prospects have to be kept out. Since the number of dependants was six, one
fourth is deducted towards personal and living expenses and loss of
dependency is worked out on multiplier of 15. The total loss of dependency
is, thus, calculated as (6422x3/4x12x15) `8,66,970/-, rounded off to
`8,67,000/-.
6. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
`25,000/- is added towards loss of estate. The total compensation in the
case comes to (8,67,000+2,50,000) `11,17,000/-.
7. 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.
8. The award is modified accordingly.
9. The directions in the orders dated 01.08.2014 and 19.08.2014, read
together, show that the entire awarded amount with up-to-date interest was
deposited with Registrar General from out of which 70% was allowed to be
released, the balance kept in fixed deposit receipt with UCO Bank, Delhi
High Court Branch, New Delhi.
10. The Registrar General shall calculate the amount payable to the
claimants in terms of the award modified as above and release the
balance to them refunding the excess in deposit to the insurance company.
11. The statutory deposit, if made, shall be refunded.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 27, 2016
ssc
