Delhi High Court
New India Assurance Co. Ltd. vs Roy Gita & Ors. on 18 March, 2016
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th March, 2016
+ MAC.APP. 166/2013
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. P Acharya, Adv.
versus
ROY GITA & ORS. ..... Respondents
Through: Mr. S N Parashar, Adv. for R-1 to 4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On the claim petition under sections 166 and 140 of Motor Vehicles
Act, 1988 (M V Act) presented by the first to fourth respondents herein
(collectively, the claimants), registered as MACP No.408/11, the motor
accidents claims tribunal (Tribunal), by order dated 21-12-2012, granted
compensation in the sum of Rs.10,81,942/- with interest at 7.5% per annum
from the date of filing of petition (14-10-2011) till realization on account of
death of Roy Gopal in a vehicular accident that occurred at 6.30 PM on 28-
08-2011 involving truck bearing no.UP 14 AT 2832 (the offending vehicle)
which was admittedly insured against third party risk with the appellant
insurance company (Insurer), after holding its driver and owner to be jointly
and severally liable.
2. The Tribunal calculated the compensation thus :-
1. Loss of dependency : Rs.10,51,923.60
{(Rs.6422/- + 30%) x 12 x 14
-25%}
2. Compensation for Loss of
consortium (as petitioner
no. 1 is wife of deceased) :Rs. 10,000.00
3. Compensation for loss of love
and affection (as petitioner no.2
to 4 are children of deceased) : Rs. 10,000.00
4. Compensation for loss of estate : Rs. 5,000.00
5. Funeral Expenses (there is no
proof of Rs.30,000/- having
been spent on transportation
and last rites of deceased) : Rs. 50.000.00
Rs.10.81,923.60
Rounded to Rs.10,81,924.00
3. As pointed out by the learned counsel for the claimants, the amount of
Rs.50,000/- mentioned against Item No.5 above (financial expenses) was
typographical error as the total compensation indicates the said amount was
treated to be only Rs.5,000/-.
4. The solitary ground on which the appeal has been filed is that the
element of future prospects to the extent of 30% was wrongly added to
calculate the loss of dependency.
5. The tribunal noted in the impugned judgment that the deceased was
illiterate. The claimants had not been able to prove the nature of occupation
or business in which he was engaged or the income that was accruing to
him. In these circumstances, the tribunal took Rs.6,422/- per month as the
benchmark, it being the amount of minimum wages payable to an unskilled
worker at the relevant point of time.
6. 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.
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. This applies to the matter at hand because the
claimant here has not led any evidence showing the income was subject to
any periodic increase.
8. The contention of the insurance company that future prospects could
not be added thus must be accepted. In these circumstances, the loss of
dependency has to be recomputed. Since the dependent family members
were four in number, 1/4th is to be deducted towards personal and living
expenses. This means the monthly loss of dependency comes to (6,422 x 3
÷ 4) Rs.4,817/-. On the multiplier of 14 (the deceased was 45 years old), the
total loss of dependency is computed as (4,817 x 12 x 14) Rs.8,09,256/-.
9. But, as pointed out by the counsel for the claimants, the award under
the non-pecuniary heads of damages is inadequate. Following the view taken
in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala
V. Gangalakshmamma (2015) 9 SCC 150, the compensation in the sum of
Rs.1,00,000/- each for loss of consortium and loss of love and affection,
Rs.25,000/- each towards loss of estate and funeral expenses are required to
be added.
10. Thus, the total compensation payable in the case comes to
(8,09,256+2,50,000) Rs.10,59,256/-. It is further pointed out by the learned
counsel for the claimants that the rate of interest is on the lower side.
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 petition till realization. The award is modified accordingly.
11. By order dated 19.02.2013, the insurance company had been called
upon to deposit the entire awarded amount with up-to-date interest with
UCO Bank and out of the said deposit, 60% was allowed to be released to
the claimants. The Registrar General shall now recompute the amount
payable to the claimants and release the same from out of the deposit thus
made. If the deposit is in excess, it shall be refunded to the insurance
company with statutory deposit, if made. Conversely, if the amount
deposited is found to be deficient, the insurance company shall deposit the
balance with the tribunal within 30 days which shall also to be released.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 18, 2016/VLD
