Delhi High Court
United India Insurance Co Ltd vs Manju & Ors on 19 February, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19th February, 2016
+ MAC.APP. 1119/2011
UNITED INDIA INSURANCE CO LTD ..... Appellants
Through: Mr. Abhishek K Gola, Adv.
versus
MANJU & ORS ..... Respondents
Through: Ms. Madhu Bala Gautam, Adv. for
Ms. Manpreet Kaur, Adv. for R-1 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By judgment dated 07.09.2011, the appellant insurance company has
been called upon by the Motor Accident Claims Tribunal (the Tribunal) to
pay compensation in the sum of ₹10,50,771/- with interest at 7.5% per
annum awarded on the claim petition under Sections 166 and 140 of Motor
Vehicles Act, 1988 (MV Act). The first two respondents herein
(collectively, the claimants) had filed claim case registered as 899/2009. On
the basis of findings returned that Kailash had died in motor vehicular
accident that occurred at about 7 AM on 29.09.2009 at Ghewra Mor Chowk,
Delhi on account of rash/negligent driving of bus bearing registration
No.DL-1PB- 1226 (the offending vehicle) of ninth respondent (Delhi
Transport Corporation) concededly insured against third party risk with the
appellant insurance company, the liability was fastened.
2. The solitary ground on which the appeal is pressed is with regard to
the computation of compensation for calculating the loss of dependency, to
be specific to question the addition of the element of future prospects of
increase in the income of the deceased.
3. The appeal was filed in 2011 and has remained pending over past
several years. It came up for hearing on 18.08.2015 but was adjourned with
liberty granted for brief synopsis of arguments to be submitted. On
26.08.2015, adjournment was taken for the brief written synopsis to be filed.
On 15.10.2015, none appeared on behalf of the claimants and brief synopsis
having not been filed, the matter was adjourned yet again. Today, when the
matter is taken up, a proxy counsel appears on behalf of the counsel for the
claimants only to seek yet another adjournment. In the given backdrop, this
request cannot be granted.
4. Having heard the arguments it is found that the ground on which the
appeal is pressed is well founded.
5. 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.
6. 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.
7. It is noted that the claimants were unable to prove on record the claim
that he deceased was running the business of tent house and catering earning
₹20,000/- per month. In this view, the tribunal adopted, and rightly so, the
notional income of ₹3,953/- per month it being the rate of minimum wages
payable during the relevant period.
8. Since the deceased was claimed to be self employed, in view of the
prevalent view, the factor of prospects of future increase cannot be allowed.
Thus, the loss of dependency has to be recalculated. Having regard to the
number of dependents, the Tribunal deducted, and rightly so, 1/5th of the
income towards personal and living expenses. In this view, the monthly loss
of dependency is calculated as (3,953 x 4 ÷ 5) ₹3,162/-.
9. On the multiplier of 16, as correctly adopted by the Tribunal (having
regard to the age of 34 years of the deceased), the loss of dependency is
calculated as (3,162 x 12 x 16) ₹6,07,104/- rounded off to ₹6,08,000/-.
10. The Tribunal awarded ₹1 lakh towards love and affection, ₹25,000/-
towards funeral charges, ₹10,000/- towards loss of consortium and ₹5,000/-
towards loss of estate. It is noted that the awards on account of loss of
consortium and loss of estate are highly inadequate.
11. In Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54, the
Supreme Court had awarded ₹1 lakh towards loss of consortium in addition
to ₹1 lakh on account of loss of love & affection. In Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, similar awards were made under
non-pecuniary heads and in addition ₹25,000/- awarded towards loss of
estate. Thus, the damages awarded towards loss of consortium and loss of
estate are increased to ₹1 lakh and ₹25,000/- each. This would be in
addition to compensation in the sum of ₹1 lakh towards love & affection
and ₹25,000/- towards funeral charges.
12. Thus, adding ₹2,50,000/- to the amount awarded on loss of
dependency, the total compensation that deserves to be awarded in the case
comes to ₹8,58,000/- (Rupees Eight Lakhs and Fifty Eight Thousand only).
13. The award granted by the Tribunal is modified accordingly. It shall
carry interest at the rate levied and, except with modification mentioned
herein below, shall be apportioned in the ratio as per directions in the
impugned judgment.
14. By order dated 14.12.2011, the appellant had been directed to deposit
the awarded amount with up-to-date interest with State Bank of India, Tis
Hazari within the period specified. By order dated 14.05.2012, 50% of the
said deposited amount was allowed to be released in favour of the claimants
No.1 to 5 and 7.
15. Respondent No.6 having died, his name was deleted from amongst the
claimants by order dated 18.08.2015. In terms of directions in the judgment,
the share of the said claimant had been determined at 10% of the awarded
amount. It is directed that the said share shall now be payable to his widow
Sheela Devi (seventh respondent herein).
16. The Tribunal is directed to calculate the amounts payable to the six
claimants as above, in terms of the award modified in light of above
observations and directions. The amount lying in excess shall be refunded.
17. Statutory amount, if deposited, shall also be refunded.
18. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 19, 2016
VLD
