Delhi High Court
Sanno Begum & Ors vs Royal Sundram Alliance Insurance ... on 31 March, 2016
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31st March, 2016
+ MAC.APP. 1143/2011
ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD
..... Appellant
Through Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs.
versus
SANNO BEGUM & ORS
..... Respondent
Through Mr. O P Mainnie, Adv. for R-1 to 8
+ MAC.APP. 39/2015
SANNO BEGUM & ORS
..... Appellant
Through Mr. O P Mainnie, Adv.
versus
ROYAL SUNDRAM ALLIANCE INSURANCE CO LTD
..... Respondent
Through Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Shahid Ali was travelling in motor vehicle which is described as van
bearing registration No.DL 1LJ 8071 (the offending vehicle) which was
carrying certain goods, on 04.09.2011, it being driven at the relevant point
of time by Praveen Kumar (ninth respondent in MAC.APP.No.1143/2011),
it being admittedly owed by Bijender (tenth respondent in
MAC.APP.No.1143/2011) and insured against third party risk for the period
in question with the Royal Sundaram Alliance Insurance Co Ltd (appellant
in MAC.APP.No.1143/2011). The said vehicle overturned in the area of
police station Sadar Bazar, Delhi resulting in Shahid Ali being crushed to
death. His widow and other dependent family members (eight in number)
brought an accident claim case (suit No.446/2010) before the motor accident
claims tribunal (tribunal) on 01.11.2010 impleading the driver, owner and
insurer of offending vehicle as respondents. The said petition was allowed
by judgment dated 05.09.2011 of the tribunal whereby compensation in the
sum of Rs.12,41,000/- with interest at 7.5% was granted with direction to
the insurer to satisfy the award under the indemnity clause. The said amount
of compensation included Rs.12,16,051.20 calculated as loss of dependency
besides Rs.10,000/- each on account of loss of consortium and loss of estate
with Rs.5,000/- towards funeral expenses.
2. The insurance company had taken the plea that the deceased was
travelling as a gratuitous passenger and, therefore, his risk was not covered.
This contention was rejected with reference to the evidence, inter alia, of
Vijay Kumar (PW2), manager of firm described as Maxwell stating that the
deceased was travelling as labourer engaged by said firm with its goods on
the vehicle in question.
3. The insurer by its appeal (MAC.APP.No.1143/2011) re-agitates the
contention that the liability to indemnify could not have been fastened on it
since the deceased was travelling as gratuitous passenger. Its plea must be
rejected for the evidence on record clearly shows that the deceased was
travelling with the goods of his employer which had engaged the delivery
van for such purposes. Noticeably, the evidence to the contrary led by the
insurer through Punit Gupta (R3W1) is not based on any personal
knowledge.
4. The next contention of the insurance company in its appeal is that the
loss of dependency has been wrongly calculated with addition of 50% future
prospects of increase over and above the income notionally assessed
(Rs.5,278/-) on the basis of minimum wages. Per contra, the claimants
argue that the non-pecuniary damages and the rate of interest levied are
inadequate.
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 SCC 166.
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 the facts and circumstances of the case, the loss of dependency has
to be calculated without the element of future prospects being taken into
account. Since the number of dependents was eight, reduction on account of
personal and living expenses has to be to the extent of 1/5 th. Consequently
the monthly loss of dependency is worked out as (5,278 x 4 ÷ 5) Rs.4,223/-.
Since the deceased was 35 years old on the date of accident, the total loss of
dependency is calculated as (4223 x 12 x 15) Rs.7,60,140/- rounded off to
Rs.7,61,000/-.
8. 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 Rs.1 lakh each on account of loss of love &
affection and loss of consortium and Rs.25,000/- each towards loss of estate
and funeral expense are added. Thus the total compensation in this case
comes to (7,61,000 + 2,50,000) Rs.10,11,000/-.
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.
10. By order dated 23.12.2011, in MAC.APP.No.1143/2011, the
insurance company had been directed to deposit the entire awarded amount
with up-to-date interest with the Registrar General whereupon it was
directed to be kept in fixed deposit receipt. The Registrar General shall now
calculate the amount payable to the claimants in terms of award modified as
above and release the same forthwith to each of them refunding the excess,
if any, to the insurance company with statutory deposit, if made.
Conversely, if any further amount requires to be paid, the same shall be
deposited with the tribunal within 30 days of today upon which the same
shall also be released.
11. The appeals are disposed of in the above terms.
R.K. GAUBA
(JUDGE)
MARCH 31, 2016
VLD
