Delhi High Court
New India Assurance Co Ltd vs Bimla Devi & Ors on 23 March, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2016
+ MAC.APP. 742/2011
NEW INDIA ASSURANCE CO LTD
..... Appellant
Through Mr. P Acharya, Adv.
versus
BIMLA DEVI & ORS
..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Balwant Singh died in a motor vehicular accident on 13.02.2006
statedly due to rash/negligent driving of truck bearing No.HR 46B 1939
(the offending vehicle) which was admittedly insured against third party
risk with the respondent (insurer). The claim petition under Sections 166
and 140 of Motor Vehicles Act, 1988 (MV Act) was brought on
08.03.2007, registered as suit No.526/07/08, before motor accidents
claims tribunal (tribunal). The driver and owner of the offending vehicle
were impleaded as parties in addition to the insurer. The tribunal
computed the compensation as under :
"1 Loss of dependency (4157 X12X13) =Rs. 6,48,492/-
2 Loss of Consortium = Rs. 10,000/-
3 Loss of Love and affection = Rs. 1,00,000/-
4 For funeral expenses = Rs. 10,000/-
5 Loss of estate = Rs. 10,000/-
Total Rs. 7,78,492/-
(Rupees Seven Lacs Seventy Eight
Thousand four Hundred and ninety
two Only)
2. The insurance company had pleaded that there was a breach of
terms and conditions of the insurance policy as there was no valid permit
held in respect of the offending vehicle. This plea was upheld and the
insurance company (asked to pay the compensation) was granted
recovery rights.
3. The insurance company, by the appeal at hand, questions the
computation of loss of dependency on the ground that it was wrongly
calculated by addition of future prospects to the extent of 50% over and
above the notional income ( ₹3,695/-) assessed on minimum wages. It
also insists that instead of being called upon to pay, it should have been
fully exonerated in view of the breach.
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 SCC166.
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 there was no proof of regular employment or progressive
increase in income, the element of future prospects has to be kept out.
The loss of dependency, after deducting 1/4th (there are four claimants)
comes to (3,695 x 3 ÷ 4) ₹2,771/- per month. Since the age of the
deceased was in the region of 46 to 48 years, the tribunal correctly
adopted the multiplier of 13. Thus, the total loss of dependency is
calculated as (2,771 x 12 x 13) ₹4,32,276/- rounded off to ₹4,33,000/-.
7. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC
150, compensation in the sum of `1 lakh each on account of love &
affection and loss of consortium and `25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation payable in
the case is computed as (4,33,000 + 2,50,000) ₹6,83,000/-.
8. It is noted that the tribunal granted 7.5% as the interest. 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.
9. While the share of second to fourth claimants is maintained, the
entire balance shall go to the first claimant (widow). The award is
modified as above.
10. In view of the judgments in National Insurance Company V.
Swaran Singh (2004) 3 SCC 297 and United India Insurance Company
Ltd. V. Lehru & Ors. (2003 3 SCC 338, there is no good ground made out
for the insurance company to be fully exonerated. It has already been
granted recovery rights. No further modification in the judgment is called
for.
11. In terms of the order dated 18.08.2011, the insurance company had
been directed to deposit the entire awarded amount with up-to-date
interest with the Registrar General of this Court, which was to be kept in
fixed deposit receipt. By order dated 17.04.2013, 60% of the said
amount was released to the claimants. The Registrar General shall now
recalculate the amount payable to the claimants in terms of the above
directions and release the same with proportionate interest in their favour.
If there is any short fall, the same shall be deposited by the insurance
company with the Registrar General within 30 days of today. On the
other hand, if excess has been deposited or released, the same shall be
refunded.
12. The statutory deposit, if made, shall be refunded.
13. The appeal stands disposed of in above terms.
MARCH 23, 2016 R.K. GAUBA
VLD (JUDGE)
