Delhi High Court
Icici Lombard General Insurance ... vs Sameena Hasan & Ors on 27 January, 2016
Author: R. K. Gauba
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th January, 2016
+ MAC.APP. 377/2015
ICICI LOMBARD GENERAL INSURANCE CO LTD
..... Appellant
Through Ms. Suman Bagga, Adv. and Mr.
Pankaj Gupta, Advs.
versus
SAMEENA HASAN & ORS ..... Respondents
Through Mr. Jatinder Kumar, Adv. for R-1
to 4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. A very short issue is raised in this appeal under Section 173 of
Motor Vehicles Act, 1988 ("MV Act") by the insurance company
concerning claim case No.568/2014 decided by the Motor Accident
Claims Tribunal ("the Tribunal") by judgment dated 10.02.2015. The
claim petition was filed by the first four respondents against the fifth
respondent and the appellant insurance company for compensation on
account of death of Mahboob Hassan in motor vehicular accident that
occurred at about 8 AM on 01.09.2013 involving Tata Tempo Ace
bearing registration No.DL 1RL 8185 ("the offending vehicle") on
Muradabad-Delhi Road, PS Garh Mukteshwar, Hapur. The fifth
respondent herein was statedly the driver of the said vehicle which was
admittedly insured with the appellant company against third party risk.
The Tribunal awarded compensation in the sum of ₹15,63,705/- on the
basis of multiplier of 15 having regard to the age of the deceased (38
years), adopting the notional income of ₹7,722/- as per minimum wages
for unskilled workers prevalent at that time, factoring in future prospects
of increase in income to the extent of 50%, adding non-pecuniary
damages in the sum of ₹1 lakh towards loss of consortium, ₹25,000/- on
account of funeral expenses, ₹1 lakh towards loss of care and guidance
of minor child and ₹10,000/- towards loss of estate.
2. The narrow area of controversy raised is concerning the factor of
future prospects. The learned counsel for the appellant company
submitted that the view taken by a bench of two Hon'ble Judges of
Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 affirmed by a bench of three
Judges in Reshma Kumari V. Madan Mohan (2013) 9 SCC 65 should
prevail.
3. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, the 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. In view of the above, the compensation on account of loss of
dependency needs to be recomputed. The deceased has been assessed to
be in receipt of ₹7,722/- per month. Since the number of members of
the family dependent upon him was four, the Tribunal correctly
deducted 1/4th towards personal expenses. The monthly loss of
dependency thus comes to ₹5,792/- per month. On the multiplier of 15,
which was correctly adopted, the total loss of dependency is calculated
as (5792 x 12 x 15) ₹10,42,560/- rounded off to ₹10,43,000/-. The
learned counsel for the claimant submitted that additional amount of
compensation under the non-pecuniary head of loss of services to the
family should be added. He argued that he had led evidence in this
regard on the file of the Tribunal. Having regard to the heads under
which non-pecuniary damages has already been awarded, this request
cannot be granted.
6. The total compensation payable to the claimants, thus, is
computed at ₹12,78,000/-.
7. The award of compensation is, thus, modified. Instead of the
amount awarded by the Tribunal, the claimants shall be entitled to
compensation of ₹12,78,000/- with interest at the rate awarded by the
Tribunal, to be paid in shares as determined in the impugned judgment.
8. By order dated 24.04.2015 the Tribunal had directed the appellant
to deposit 75% of the awarded with proportionate interest out of which
₹2 lakhs were released to the first respondent, the balance directed to be
kept in FDR for a period of one year to be renewed from time to time.
9. The claims Tribunal is directed to calculate the amount payable to
the claimants in terms of modified award and issue necessary directions
for the sums to be released out of the amount deposited in terms of
above noted directions. Should any further amount be found payable,
the insurance company shall be liable to deposit with the Tribunal
within 30 days. Conversely, if any excess has been deposited, the same
shall be released to the insurance company.
10. The statutory deposit, if made, shall be refunded.
11. The trial court record, be sent back to the Tribunal.
12. Parties are directed to appear before the Tribunal on 24.02.2016.
R.K. GAUBA
(JUDGE)
JANUARY 27, 2016
VLD
