Delhi High Court
The New India Assurance Co. Ltd. vs Reshmi & Ors. on 2 June, 2016
$~R-142
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02.06.2016
+ MAC.APP. 137/2008 & CM No.3134/2008
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Mr. Pankaj Seth, Adv.
versus
RESHMI & ORS. ..... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sher Deen, aged 35 years, working as labour contractor suffered
injuries in motor vehicular accident on 16.08.2000 statedly on account of
negligent driving of truck bearing registration No.DL 1G B 8165 (offending
vehicle) and died in the consequence. His dependent family members, first
to seventh respondents (claimants), instituted an accident claim case (suit
No.480/2000) on 20.12.2000, seeking compensation under Sections 166 &
140 of Motor Vehicles Act, 1988 (MV Act), on the averments that the
accident had occurred due to negligent driving of the offending vehicle by
Rashid Ahmed (eighth respondent). It was also pleaded that the offending
vehicle was owned by Harish Chand (ninth respondent) and insured against
third party risk with the appellant insurance company (insurer). The said
driver, owner and insurer were impleaded as party respondents before the
tribunal. Additionally, Smt. Zahoor Bi and Sh. Mehtab (tenth and eleventh
respondents herein) were also shown in the array of respondents on the
averment that they were parents of the deceased.
2. The tribunal held inquiry and, on the basis of evidence led, by
judgment dated 23.11.2007, upheld the case of the claimants that death had
occurred due to negligent driving of the offending vehicle. It granted
compensation in the sum of Rs.5,98,000/- with interest at 7% per annum
from the date of filing of the petition till realization apportioning it amongst
the said claimants and parents of the deceased. It is noted that the insurer
had taken the plea of the breach of terms and conditions of the insurance
policy and on that basis, though directed to satisfy the award, it was granted
recovery rights against Harish Chand (ninth respondent), the owner of the
offending vehicle.
3. The insurer filed the present appeal questioning the calculation of loss
of dependency. It points out that the tribunal had assumed the income of the
deceased at Rs.2,524/- per month it being the rate of minimum wages of
unskilled worker but thereafter proceeded to draw an average by its
comparison with the minimum wages prevailing on the date of the judgment
and further enhancing it by the element of future prospects to arrive
eventually at the notional income of Rs.4,495/- from which 1/3rd was
deducted towards personal & living expenses and the dependency loss
computed at the multiplier of 16.
4. 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 SCC 166.
5. 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.
6. Since no clear evidence was led as to the actual income of the
deceased, the income has to be calculated on the basis of minimum wages.
But then, it has to be noted that the deceased was working as labour
contractor. This would put him in the category of supervisory level and,
therefore, the minimum wages of non-matriculate supervisory staff is
assumed to be the income, it being Rs.2,717/- per month.
7. Taking note of the fact that the number of dependent family members
was nine, the deduction on account of personal & living expenses will have
to be to the extent of 1/5th. Thus calculated, on the multiplier of 16, the total
dependency loss comes to (2,717 x 4 ÷ 5 x 12 x 16) Rs.4,17,331/- rounded
off to Rs.4,18,000/-.
8. It is noted that the tribunal awarded only Rs.20,000/- towards loss of
love & affection and consortium put together and Rs.2,000/- towards burial
expenses. Having regard to the date of death, following the view taken by
this court in Madhu Marwaha & Anr vs. Dal Chand & Anr., FAO 102/2001,
decided on 01.02.2016, which is referred by the counsel for the claimants,
the award in the sum of Rs.50,000/- each towards loss of consortium and
loss of love & affection and Rs.10,000/- each towards funeral expenses and
loss to estate are added. Thus, the total compensation in the case comes to
(4,18,000 + Rs.1,20,000) Rs.5,38,000/-.
9. 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. Needless to add, the
amount paid under Section 140 of MV Act shall need to be suitably
adjusted.
10. The award is modified accordingly.
11. By order dated 03.03.2008, the enforcement of the impugned award
was stayed subject to depositing the awarded amount with Registrar
General. It was noted in the order dated 13.05.2010 that the insurance
company had deposited Rs.8,13,837/- in compliance with the said order. By
order passed on the said date, Rs.5,50,000/- was allowed to be released to
the claimants, the balance kept in fixed deposit with the registry for a period
of two years.
12. It is noted that the tribunal had apportioned the award amongst
different claimants by specifying the amounts falling to their respective
shares. Since the award has been slightly reduced, it is directed that the
amounts already released to the other claimants/dependent family members
shall be treated as their respective share in the total compensation, the entire
balance now payable including on account of increase in the rate of interest
to go to the first claimant (first respondent) Reshmi @ Pappi (widow).
13. The Registrar General shall now calculate the amount payable in
terms of the modified award and release the same from the balance lying in
deposit refunding the excess, if any, to the insurance company. Conversely,
if any amount remains outstanding, the insurer will be obliged to deposit the
same with the tribunal within 30 days, making it available to be released.
14. Statutory deposit, if made, shall be refunded.
15. The appeal is disposed of in above terms.
16. Since the award has been modified, a copy of this judgment shall be
sent by the registry to the claimants by registered post at the given address.
(R.K. GAUBA)
JUDGE
JUNE 02, 2016
VLD
