Delhi High Court
Kamlesh & Anr vs Mohd Iklakh & Ors(Magma Hdi Genl. ... on 29 February, 2016
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29th February, 2016
+ MAC.APP. 191/2016
KAMLESH & ANR
..... Appellant
Through Mr. Sameer Nandwani, Adv.
versus
MOHD IKLAKH & ORS(MAGMA HDI GENL. INS.CO.LTD.)
..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appeal at hand has been preferred by the parents of Shiv Kumar,
then aged 23 years, he having died in a motor vehicular accident that
occurred at about 11.30 PM on 15.07.2013 on being hit by truck No.UP
15AT 7720, concededly insured with the third respondent herein. The
appellants had preferred claim petition under Sections 166 and 140 of Motor
Vehicles Act, 1988 (MV Act) on 28.11.2013 seeking compensation, the
claim case having been registered as MACT case No.565 in which the first
and second respondents herein were impleaded as party respondents, they
being the owner and driver of the offending vehicle, in addition to the
insurance company. The claimants stated before the Tribunal that the
deceased was running the business of a tent house earning ₹15,000/- per
month.
2. The Tribunal, on inquiry, found that there was no concrete proof as to
the avocation or income of the deceased and thus proceeded to assess the
loss of dependency on the basis of minimum wages payable to a matriculate.
It awarded compensation in the sum of ₹8,67,108/- with interest, computing
it as under :
"1. Loss of dependency ₹7,32,108/-
3. Funeral charge ₹25,000/-
4.Loss of love and affection ₹1,00,000/-
5. Loss of estate ₹10,000/-
Total ₹8,67,108/-"
3. The grievances of the claimants are two-fold, one, that the future
prospects should have been taken into account and, two, that the multiplier
of 13 has been wrongly adopted on the basis of age of the mother and that it
should have been as per the age of the deceased.
4. Both the contentions are misplaced and, therefore, the appeal deserves
to be dismissed.
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. Since the deceased was admittedly self-employed there is no scope for
future prospects to be added.
8. It is settled law that multiplier is to be adopted having regard to the
age of the deceased or claimants, whichever is higher. [G.M. Kerela SRTC
vs Susamma Thomas (1994) 2 SCC 176; U.P.S.R.T.C. vs Trilok Chandra
(1996) 4 SCC 362; New India Assurance Co. Ltd. vs Charlie AIR 2005 SC
2157; New India Assurance Co. Ltd. vs Shanti Pathak (Smt.) & Ors., (2007)
10 SCC 1; Ramesh Singh & Anr. vs Satbir Singh & Anr. (2008) 2 SCC 667;
National Insurance Company Ltd. vs Shyam Singh & Ors. (2011) 7 SCC 65;
Ashwinbhai Jayantilal Modi vs Ramkaran Ramchandra Sharma & Anr.
(2015) 2 SCC 180]
9. The appeal with accompanying application is dismissed in limine.
R.K. GAUBA
(JUDGE)
FEBRUARY 29, 2016
VLD
