Delhi High Court
Oriental Insurance Co. Ltd. vs Padam Singh (Now Deceased )& Ors on 30 March, 2016
$~19 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30th March, 2016
+ MAC.APP. 666/2014 & CM Nos. 11942-43/2014
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Manoj Bhandari, Adv.
Versus
PADAM SINGH (NOW DECEASED )& ORS ..... Respondents
Through: Mr. Rajeev Kumar & Mr. Saurabh
Kumar, Advs.
AND
+ MAC.APP. 674/2014
SHASHI & ORS. ..... Appellant
Through: Mr. Rajeev Kumar & Mr. Saurabh
Kumar, Advs.
Versus
RAJ KUMAR& ORS .... Respondents
Through: Mr. Manoj Bhandari, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Padam Singh, aged 36 years, a self-employed person, died as a result
of injuries suffered in a motor vehicular accident that occurred at about
11.30 a.m. on 02.03.2009 involving truck bearing No. HR 38 J 3572 (the
offending vehicle) which was admittedly insured against third party risk
with the appellant insurance company (insurer) for the period in question.
His dependant family members (first to sixth respondents in MAC Appeal
No. 666/2014 and appellants in MAC Appeal No. 674/2014) took over the
claim petition which was originally filed by Padam Singh himself for
compensation under Sections 166 and 140 of Motor Vehicles, 1988 (MV
Act) since he died during its pendency on account of injuries. In the said
claim petition, the driver and owner of the offending vehicle were impleaded
as respondents, in addition to the insurer.
2. The tribunal held inquiry and, by judgment dated 20.01.2014,
awarded compensation in the sum of ` 9,40,160/- with interest @ 7.5 % per
annum from the date of filing of the petition (15.7.2009), directing the
insurance company to pay. The award has been calculated thus:-
1. Loss of dependency ` 8,30,160/-
2. Medical expenses & ancillary ` 40,000/-
expenses
3. Funeral & miscellaneous expenses ` 25,000/-
4. Loss of estate ` 10,000/-
5. Loss of Love & affection ` 25,000/-
6. Loss of consortium ` 10,000/-
Total awarded compensation ` 9,40,160/-
Less interim award ` 50,000/-
Total payable ` 8,90,160/-
3. The insurance company by its appeal questions the calculation of loss
of dependency on the ground that minimum wages of semi-skilled worker (`
4,100/-) was wrongly adopted in absence of proof of the deceased being
specially skilled in any manner. It is the contention of the insurer that
minimum wages of unskilled worker at ` 3,934/- should instead have been
adopted as the benchmark in absence of any formal proof income. This plea
must be accepted.
4. The insurance company further submits that addition of future
prospects of 50% of increase was unfounded and improper.
5. 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.
6. 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.
7. In above facts and circumstances, the loss of dependency must be
calculated on the notional income of ` 3,934/- per month without addition of
future prospects. Since the number of dependants was more than three, 1/4 th
had to be deducted towards personal & living expenses and rightly so done
by the tribunal. In this view, the monthly loss of dependency is calculated at
(3,934 x 3 ÷ 4) ` 2,951/-. On the multiplier of 15, the total loss of
dependency is calculated at (2951 x 12 x 15) ` 5,31,180/- rounded off to `
5,32,000/-
8. This Court agrees with the submission of the claimants that the
awards under the non-pecuniary heads on account of loss of estate, loss of
love & affection and loss of consortium 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, compensation in the
sum of `1 lakh each on account of love & affection and loss of consortium
besides ` 25,000/- towards loss of estate, also adding the medical expenses
of ` 40,000/- and funeral expenses of ` 25,000/-. The total compensation
payable in the case comes to (5,32,000 + 2,90,000/-) ` 8,22,000/-.
9. 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. Needles to add, the interim award has
to be suitably adjusted.
10. By order dated 28.07.2014 in MAC Appeal No. 666/2014, the
insurance company had been directed to deposit the entire awarded amount
with accumulated interest with Registrar General, and out of such deposit
75% was allowed to be released to the claimants, the balance kept in fixed
deposit with UCO Bank, Delhi High Court Branch, for one year to be
renewed from time to time.
11. The Registrar General is directed to calculate the shares payable to the
claimants in terms of the above directions and release the same with
proportionate interest in their favour in terms of the aforementioned
directions. 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. Statutory deposit, if made, shall be refunded.
13. Both appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 30, 2016/nk
