Delhi High Court
New India Assurance Co Ltd vs Kamlesh Soni & Ors on 31 March, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31st March, 2016
+ MAC.APP. 160/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. P Acharya, Adv. for Mr. K L
Nandwani, Adv.
versus
KAMLESH SONI & ORS ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sandeep Soni, a bachelor, aged 29 years, died as a result of injuries
suffered in a motor vehicular accident that occurred at about 6.50 AM on
25.03.2009 involving motor vehicle described as dumper bearing
registration No.HR 38 E-5676 which was admittedly insured against third
party risk with the appellant insurance-company (insurer). His mother (a
widow) brought an accident claim case under Sections 166 and 140 of
Motor Vehicles Act (MV Act) on 01.06.2009 before the motor accident
claims tribunal (tribunal) where it was registered, inter alia, on the basis of
accident information report (AIR) as case No.676/2009.
2. The insurer along with the driver and the owner of the offending
vehicle were impleaded as party respondents. By judgment dated
05.11.2011, the tribunal awarded compensation in the sum of Rs.5,38,573/-
with interest at 7.5% per annum from the date of filing of the petition till
realization in favour of the claimant (first respondent). The said award
included Rs.1,30,000/- towards non-pecuniary heads of damages and
Rs.4,08,573/- towards loss of dependency.
3. The insurer by appeal at hand raises two contentions. The first
contention is that there was no evidence led about the negligence or
involvement of the offending vehicle in the accident. The second contention
concerns the calculation of loss of dependency on the basis of addition of
future prospects.
4. Whilst it is true that in the discussion against issue No.1 in the
impugned judgment, the tribunal seems to have indicated that the negligence
and involvement of the offending vehicle was sought to be proved on the
basis of record of corresponding criminal case, the fact remains that the
claimant had examined Ajay Soni (PW3) brother of the deceased on the
strength of his affidavit (Ex.PW3/A). PW3 was an eye witness to the
occurrence and narrated the sequence of events, also proving the negligence
on the part of the truck driver. The said evidence has gone unrebutted and
unchallenged. In these circumstances, there is no reason for the finding
returned by the tribunal to be interfered with.
5. The claimant was unable to muster any clear evidence as to the
employment or earnings of the deceased. Therefore, the tribunal assumed
the notional income of Rs.4,127/- as minimum wages paid to a non-
matriculate and to this future prospects were added to calculate the loss of
dependency.
6. 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.
7. 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.
8. The loss of dependency has to be worked out without the element of
future prospects. The deceased was a bachelor. Therefore, 50% is deducted
towards personal & living expenses and thus, the loss of dependency is
calculated as (4,127 ÷ 2 x 12 x 11) Rs.2,72,382/- rounded off to
Rs.2,73,000/-. Adding the non-pecuniary damages, the total compensation
in the case comes to (2,73,000 + 1,30,000) Rs.4,03,000/-.
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. The award is modified accordingly.
11. By order dated 13.02.2012, the insurer had been directed to deposit
the entire awarded amount with up-to-date interest with the Registrar
General whereupon such deposit was allowed to be kept in fixed deposit in
UCO Bank, Delhi High Court branch for a period of one year to be renewed
from time to time. By order dated 17.04.2013, 50% of the deposited amount
was allowed to be released to the claimant.
12. The Registrar General shall now calculate the sums payable to the
claimant and release the same with proportionate interest in her favour in
terms of the aforementioned directions, refunding the excess, if any, with
statutory deposit to the insurer. Conversely, if more amount is required to
be paid, the insurer shall be directed to deposit the same with the tribunal
within 30 days of this judgment whereupon it shall be released with interest
accordingly.
13. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 31, 2016
VLD
