Delhi High Court
The Oriental Insurance Co Ltd vs Sanjeev Kumar & Ors on 24 February, 2016
$~14 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th February, 2016
+ MAC.APP. 502/2014 & CM No.19766/2015
THE ORIENTAL INSURANCE CO LTD
..... Appellant
Through Mr. J P N Shahi, Adv.
versus
SANJEEV KUMAR & ORS
..... Respondent
Through Ms. Aparna Sharma, Adv.
+ MAC.APP. 457/2015 & CM No.10130/2015
RAJEEV KUMAR
..... Appellant
Through Ms. Aparna Sharma, Adv.
versus
THE ORIENTAL INSURANCE CO LTD & ORS
..... Respondent
Through Mr. J P N Shahi, Adv. for insurance
Mr. Sanjeev Goyal and Mr. Sangeeth
Mohan. K., Advs. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Mr. Chandra Pal, statedly 48 years old and engaged in his own
business, suffered death due to injuries sustained in a motor vehicular
accident that occurred at about 6 AM on 30.08.2006 while travelling on the
pillion of the motorcycle bearing No.DL 4S BJ 8083 (the motorcycle) driven
by his son-in-law Shusender Kataria, which was involved in a collision
against a vehicle described as truck traula bearing No.HR 38L 9725 (the
offending vehicle), opposite Maruti Suzuki Showroom near Maa Anand Mai
Marg, Okhla Industrial Area, New Delhi. The offending vehicle was driven
by the fifth respondent herein, and owned by the fourth respondent herein, it
being concededly insured against third party risk with the appellant insurance
company (in MAC.APP.502/2014) all of whom were impleaded as party
respondents in the claim petition filed before the Motor Accident Claims
Tribunal (the Tribunal) by the first and second respondents herein (registered
as suit No.600/12/2008). It has been submitted that the claimants before the
Tribunal were son and daughter respectively of the deceased, another son
Rajeev Kumar impleaded by them as the fourth respondent (proforma party),
he having come up with his own appeal (MAC.APP.No.475/2015) to
question apportionment of the compensation that was awarded.
2. The Tribunal awarded compensation in the sum of ₹8,61,200/- with
interest at 9% per annum from the date of filing of the petition till realization
and apportioned ₹2 lakhs each in favour of the second respondent Neha
Kataria (daughter) and third respondent Rajeev Kumar (the second son),
making over the balance with proportionate interest to the first respondent
Sanjiv Kumar (son).
3. The impugned judgment shows that the Tribunal calculated the
compensation as under:
S.No. Description Amount
1 Loss of Estate Rs.8,11,200/-
2 Funeral Expenses Rs.25,000/-
3 Love & Affection Rs.25,000/-
Total Rs.8,61,200/-
4. In calculating the loss of estate, the Tribunal followed the view taken
by a learned Single Judge of this Court in the judgment in Keith Rowe v.
Prashant Sagar MAC.APP.No.601/2007 decided on 15.01.2010. The
claimants had proved income tax return (ITR) for the assessment year 2006-
07 (Ex.PW2/4), indicating the total income from business accruing to the
deceased to be ₹1,31,450/-. The ITR has been wrongly referred to as a
document „mark A‟ in the impugned judgment. It appears that the Tribunal
failed to note that it had been properly proved. The duly proved ITR shows
that it was submitted by the deceased himself on 24.08.2006. It is, thus, a
document on which conclusions as to income can be safely drawn. Though
the income declared in the said ITR showed ₹1,31,450/- as the gross income,
the Tribunal assessed the monthly income at ₹12,000/- per month. The
counsel for the claimants fairly concedes that there is no basis to such
assumption made by the Tribunal. Taking the annual income at ₹1,31,450/-,
the loss to estate has to be calculated in terms of judgment in Keith Rowe
(supra).
5. The Tribunal added the element of 30% increase towards future
prospects. The insurer is aggrieved on this count.
6. In the case reported as Sarla Verma & Ors. v. 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.
7. 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.
8. Since it is own case of claimant that the deceased was a self-employed
person, the element of future prospects cannot be added. The dependants
included the elder son aged 32 years, the second son aged 29 years and
married daughter aged 26 years. Having regard to the facts and
circumstances, the loss of dependency is to be taken to the extent of 1/3 rd
only. Thus, the total loss to estate on the multiplier of 13, as adopted by the
Tribunal, comes to (1,31,450 x 1/3 x 13) ₹5,69,616.69, rounded off to
₹5,69,620.
9. There is substance in the submissions of the counsel for the claimants
that the award on account of loss of love & affection at ₹25,000/- is
inadequate. Following the view taken in Rajesh v. Rajbir (supra) this needs
to be enhanced to ₹1 lakh. Thus, adding the non-pecuniary damages of ₹1
lakh on account of loss of love & affection and ₹25,000/- towards funeral
expenses, the total compensation payable in the case comes to (5,69,620 +
1,25,000) ₹6,94,620/-.
10. The compensation is reduced to ₹6,94,620/-. It shall carry interest at
9% per annum from date of petition till realisation.
11. Rajeev Kumar, the second son of the deceased is in appeal
(MAC.APP.No.457/2015) to question the apportionment, his grievance being
that the loss to estate has to be evenly distributed. He refers to the judgment
in Keith Rowe (supra). Indeed, there is no reason why there should be any
discrimination amongst the three children of the deceased, each of whom was
grown up, self-reliant and well settled in life. Therefore, the directions as to
the apportionments made by the Tribunal in the impugned judgment need to
be modified. It is directed that instead of the distribution of the
compensation as directed by the Tribunal, the same shall be payable in equal
proportions to the three claimants mentioned above.
12. By order dated 26.05.2014, in MAC.APP.No.502/2014, the insurance
company had been directed to deposit the entire award with up-to-date
interest with the Registrar General within the period specified and out of
such deposit 70% was allowed to be released to the respective claimants, the
balance having been retained in fixed deposit receipt with UCO Bank, Delhi
High Court Branch, New Delhi initially for a period of one year to be
renewed periodically. The Registrar General is directed to now calculate and
release the shares payable to the three claimants in terms of the award
modified as above, suitably adjusting the amounts released earlier. The
balance lying in deposit, in excess of the liability of the insurance company,
shall be refunded with statutory deposit, if made.
13. Both the appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 24, 2016/VLD
