Delhi High Court
Cholamandalam Ms Gen Ins Co Ltd vs Manju Devi & Ors on 28 March, 2016
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28th March, 2016
+ MAC.APP. 867/2012 & CM No.13708/2012 (stay)
CHOLAMANDALAM MS GEN INS CO LTD
..... Appellant
Through Mr. Pankaj Gupta, Adv. for Ms.
Suman Bagga, Adv.
versus
MANJU DEVI & ORS
..... Respondent
Through Mr. Sanjiv Gupta and Mr. Vittan
Khan, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Subhash, then 29 years old, a driver by avocation, suffered death on
account of injuries sustained in a motor vehicular accident that occurred at
about 10 PM on 12.02.2011 involving truck trailer bearing registration
No.HR 55A 8017 (the offending vehicle), admittedly insured against third
party risk with the appellant insurance company (insurer) for the period in
question. His wife, parents and three children preferred an accident claim
case (suit No.611/2011) on 18.04.2011, in the context of detailed accident
report (DAR) submitted by the local police, pursuant to the first information
report (FIR) that had been registered vide No.38/2011 in police station
Badarpur. In the claim case under Sections 166 and 140 of Motor Vehicles
Act, 1988 (MV Act) besides the insurer, the driver and owner of the
offending vehicle were also impleaded as respondents. The tribunal held
inquiry and, by judgment dated 02.06.2012, awarded compensation in the
sum of `23,90,600/- on account of death in favour of the claimants
(dependent family members) with interest at 9% per annum from the date of
filing of the petition, computing the said amount as under :
"Loss of Dependency Rs.23,25,600/-
Funeral Expenses Rs. 20,000/-
Love & Affection Rs. 25,000/-
Loss of Consortium Rs. 10,000/-
Loss of Estate Rs. 10,000/-
Total Rs. 23,90,600/-"
2. The insurance company having been fastened with the liability to pay
has preferred this appeal questioning the computation on account of loss of
dependency arguing that there was no proof of income in the sum of
`9,500/- per month as concluded by the tribunal and also taking exception to
the element of future prospects of increase to the extent of 50%. Per contra,
the claimants (first to sixth respondents) seek to point out that the non-
pecuniary damages granted by the tribunal are inadequate.
3. The tribunal concluded that the deceased was earning `9500/- per
month, relying upon the evidence of Charanjt Singh (court witness), the
transporter engaged by Indian School at Joseph Tito Marg which had
employed the deceased as driver of the rural transport vehicle (RTV) at the
relevant point of time. Clearly, the tribunal has misread the evidence as
mere oral word that the income had increased to `9,000/- per month has
been taken as the proof to conclude that the income had to be in the region
of `9,500/- per month inclusive of over-time and other incentives. The
salary vouchers produced by the witness do show that the deceased was
earning `6,500/- per month at the time of death. This, the learned counsel
for the claimants fairly concedes, should have been the appropriate
benchmark to work out the loss of dependency.
4. The argument of the insurer that the element of future prospects could
not have been added cannot be accepted for the simple reason the evidence
of the said witness showed that the salary had been on the progressive rise, it
having risen from the level of `4,500/- per month only at the time of his
initial engagement with the same employer. Thus, the loss of dependency
has to be calculated with income of `6,500/- with addition of future
prospects of increase to the extent of 50%. While calculating, the tribunal
deducted 1/5th on account of personal & living expenses. Since the number
of dependents is six, the deduction will have to be to the extent of 1/4 th.
5. In above view, the loss of monthly dependency has to be calculated
on the notional income of (6,500 X 150 ÷ 100) `9,750/-. Upon deducting
1/4th towards personal & living expenses, the monthly dependency loss
comes to (9,750 X 3 ÷ 4) `7,313/-. On the multiplier of 17, the total loss of
dependency is computed as (7,313 x 12 x 17) `14,91,852/-, rounded off to
`14,92,000/-.
6. The grievance of the claimants about the non-pecuniary damages is
correct. 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 (14,92,000 + 2,50,000) `17,42,000/-. The compensation is
reduced accordingly. It shall, however, carry interest as levied by the
tribunal.
7. The tribunal had apportioned the compensation awarded by it by
specifying the amounts which would fall to the share of each claimant. By
order dated 13.08.2012, 80% of the awarded amount was directed to be
deposited with UCO Bank, Delhi High Court branch in the name of the
claimants within the period specified and upon such deposit 50% of the
awarded amount was allowed to be released.
8. Since the award has been reduced, it is directed that the entire balance
from out of the award granted by this Court shall now be payable to the first
respondent (claimant) Manju Devi only, it being put in fixed deposit receipt
for a period of 10 years with liberty to draw monthly interest.
9. The Registrar General shall calculate the amount payable in terms of
the award modified as above and release the same from out of the deposited
amount, refunding excess, if any, to the insurer. Conversely, if any, further
amount remains outstanding, the insurer shall be liable to deposit the same
with the tribunal within 30 days of this order.
10. The statutory deposit, if made, shall also be refunded.
11. The appeal is disposed of in above terms.
MARCH 28, 2016 R.K. GAUBA
VLD (JUDGE)
