Delhi High Court
Laxmi & Ors. vs Rakesh & Ors. on 2 June, 2016
$~R-135
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02.06.2016
+ MAC.APP. 106/2008
LAXMI & ORS. ..... Appellants
Through: Ms. Prachi Johri, Adv.
versus
RAKESH & ORS. ..... Respondents
Through: Mr. Pradeep Gaur, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Dinesh Kumar, 34 years old, employed as Junior Assistant - Catering
with Escorts Heart Institute and Research Centre, Okhla Road, New Delhi,
suffered injuries in a motor vehicular accident that occurred on 13.10.2004
involving negligent driving of truck bearing No. HR 38C 8880 (the
offending vehicle), and died in the consequence. His dependent family
members (appellants) instituted an accident claim case (Suit No. 658/2004)
on 22.12.2004, seeking compensation under Sections 166 and 140 of Motor
Vehicles Act, 1988 (MV Act) on the averment that the accident had
occurred because the motorcycle bearing No. UAO 7F 9783 (the
motorcycle) driven by the deceased had been hit by the offending vehicle
which had been driven, in turn, by Rakesh (first respondent) in negligent
manner.
2. The tribunal held inquiry and, by judgment dated 29.10.2007, upheld
the case about death having occurred due to negligent driving of the truck by
the driver and, thus, holding him as the principle tort-feasor. It was also
found that the offending vehicle was owned on the relevant date by Paramjit
Singh (second respondent) and insured with National Insurance Company
Ltd. (third respondent) each of whom was also held liable, the former on
account of vicarious responsibility and the latter on account of contractual
and statutory responsibility.
3. The tribunal, by the impugned judgment, awarded compensation in
the sum of Rs. 7,06,980/- in favour of the claimants and directed the insurer
to pay the same with interest at 7% per annum from the date of filing of the
petition till realization, though accepting the plea about breach of terms and
conditions of the insurance policy and on such basis also granting it
recovery rights against the first and second respondents herein.
4. The appellants (claimants) have come up to this Court under Section
173 of MV Act with the appeal at hand submitting that the compensation
and interest granted are inadequate. It is pointed that the tribunal had
computed the loss of dependency on the income assessed at Rs. 5,055/- even
though the evidence led on record which include appointment letter
(Ex.PW2/1), letter of confirmation of service (Ex.PW2/2), pay slip
(Ex.PW2/3) and salary slip for September, 2004 (Ex.PW2/4) showed higher
salary and emoluments. The tribunal had computed the loss of dependency
after deducting 1/3rd of the income towards personal and living expenses.
Pointing out that the number of dependents was six, it is urged by the
claimants that the loss of dependency be re-calculated after deduction of
1/4th only. The claimants had pleaded before the tribunal that the element of
future prospects of increase be also considered. The tribunal, however,
declined to calculate the compensation on such basis.
5. Having heard the counsel for the claimants and for the insurer, this
Court finds merit in the grievances urged. The salary slip for September,
2004 (Ex.PW2/4) clearly showed the total emoluments to be Rs. 8703/-.
This includes basic pay, dearness allowance, house rent allowance,
conveyance allowance, professional pursuit allowance and city
compensatory allowance. Since all the said allowances were part of the
regular income, there is no reason why any allowance should be left out.
Given the terms of engagement of the deceased, the element of progressive
rise in income in future has to be granted. Thus, on the irrefutable evidence
showing progressive rise in income, the loss of dependency on the multiplier
of 16 is re-calculated as (8703 x 150 ÷ 100 x 3 ÷ 4 x 12 x 17) Rs.
18,79,848/-, rounded off to Rs. 18,80,000/-.
6. The tribunal had awarded Rs. 15,000/- towards loss of consortium and
love & affection put together, Rs. 2,000/- towards funeral expenses and Rs.
2,500/- towards loss of estate. Following the view taken in Madhu
Marwaha & Anr vs. Dal Chand & Anr., FAO 102/2001, decided on
01.02.2016, award of Rs. 50,000/- each towards loss of love & affection and
loss of consortium and Rs. 10,000/- each towards funeral expenses and loss
to estate are added. In this view, the total compensation is computed as
(18,80,000 + 1,20,000) Rs. 20,00,000/-.
7. Following the consistent view taken by this Court, the rate of interest
is increased to 9% from the date of filing of the petition till realization. [see
judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co
Ltd v. Sangeeta Devi & Ors.],
8. The award is modified accordingly.
9. It is noted that the tribunal had specified the amounts that would fall
to the share of each claimants. In the given facts and circumstances, it is
directed that the entire enhanced portion of the award including the amount
payable on account of rate of interest shall fall to the share of the first
appellant/claimant Laxmi (widow) alone. It shall, however be released to
her after being invested in two equal fixed deposit receipts in a nationalized
bank of her choice for a period of seven years with right to draw monthly
interest.
10. The insurer is directed to satisfy the enhanced award with requisite
deposit with the tribunal within 30 days of this judgment, making it
available to be released, as above. Needless to add the recovery rights
granted to the insurer shall inure to it even in respect of the enhanced award.
11. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
JUNE 02, 2016/nk
