Delhi High Court
National Insurance Co. Ltd. vs Usha Devi & Ors. on 23 March, 2016
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2016
+ MAC.APP.452/2015 & CM Nos. 9905/2015, 17691/2015
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sanjay Rawat, Adv.
versus
USHA DEVI & ORS. ..... Respondents
Through: Mr. R.N. Sharma for Mr. Jitender
Kumar, Adv. for R-1 to 5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Ram Avtar, a mason, then aged 44 years, died in a motor vehicular
accident that occurred on 11.6.2009 involving bus bearing No. DL 1PB
1768 (offending vehicle) which was admittedly insured against third party
risk with the appellant company (insurer). His widow and children (first to
fifth respondents) filed claim petition under Sections 166 and 140 of Motor
Vehicles Act, 1988 (MV Act) on 6.7.2009 seeking compensation which
was registered as Suit No. 929/2009. In addition to driver and owner of
the offending vehicle, the appellant insurance company was impleaded as a
respondent.
2. The tribunal, awarded compensation directing insurer to pay with
interest @ 9% from the date of filing of the petition, computing it as
under:-
Loss of earning ₹ 7,45,206/-
Love and affection ₹ 5,00,000/-
Funeral expenses ₹ 25,000/-
Loss of estate/consortium ₹ 20,000/-
Total ₹12,90,206/-
3. The insurer is in appeal questioning the computation of loss of
dependency on the ground future prospects have been wrongly added. The
learned counsel for the claimants, while conceding that future prospects
could not have been factored in, in the face of judgments in Sarla Verma
(Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121
and Reshma Kumari V. Madan Mohan (2013) 9 SCC 65 pointed out that
the minimum wages of unskilled worker ( ₹ 3934/- per month) have been
wrongly adopted as the benchmark ignoring the claim that the deceased
was working as mason (Raj Mistri).
4. Per contra, the learned counsel for the claimants submitted that
there was no evidence to prove that the deceased was working as raj
mistri. On perusal of the record of the tribunal it is found that the wife of
deceased had affirmed on oath that the deceased was working as raj mistri.
That assertion remains unrebutted. A person in such avocation cannot
adduce any formal proof, much less documentary, for such engagement.
There is no reason why the word of widow in this case about the
deceased being raj mistri should be disbelieved. In these
circumstances, the dependency loss has to be worked out on the basis of
minimum wages of a skilled worker ( ₹ 4,358/- per month). After
deducting 1/4th towards personal & living expenses (the deceased left
behind five dependant family members), the monthly loss of dependency
comes to (4358 x 3 ÷4) ₹ 3269. Since the deceased was 45 years old, the
multiplier of 14 was rightly adopted by the tribunal.
5. Thus, the total loss of dependency comes to (3,269 x 12 x 14) ₹
5,49,192/- rounded off to ₹ 5,50,000/-.
6. Further grievance of the appellant is that the award under the head of
loss of love & affection at ₹ 5,00,000/- is unduly high. Whilst there is
substance in this grievance, it is also noted that the tribunal did not
adequately compensate under the heads of loss of estate and loss of
consortium.
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 ₹ (5,50,000 + 2,50,000) ₹ 8,00,000/-.
8. The compensation is reduced to ₹ 8,00,000/-. It shall carry interest
as levied by the tribunal and shall be apportioned in the manner done in the
impugned judgment.
9. By order dated 25.05.2015, the insurance company had been
directed to deposit the entire awarded compensation with upto date
interest. The Registrar General shall now calculate the amounts payable to
the claimants in terms of the award modified as above and release the same
as per their respective shares, refunding the excess with statutory deposit,
if made, to the insurance company.
10. The appeal and pending applications stand disposed of in above
terms.
R.K. GAUBA
(JUDGE)
MARCH 23, 2016
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