Delhi High Court
Oriental Insurance Co Ltd vs Prem Kashyap & Ors on 31 March, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31st March, 2016
+ MAC.APP. 500/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr. Amit Gaur and Mr. Pradeep
Gaur, Advs.
versus
PREM KASHYAP & ORS ..... Respondent
Through Mr. Ashok Popli, Adv. for R-1 to 3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Mr. Ramesh Kumar, aged about 46 years, working as operator in
Sangam Cinema suffered injuries in a motor vehicular accident that occurred
at about 1 AM on 06.05.2001 involving three wheeler scooter bearing
registration No.DL 1RE 7637 (TSR) admittedly insured against third party
risk with the appellant insurance company (insurer) and died in the result.
His widow two minor daughters and mother instituted an accident claim
case under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) on
28.02.2011 which was registered by motor accident claims tribunal
(tribunal) as suit No.220/2010. The driver, owner and insurer were
impleaded in the said proceedings. The tribunal held inquiry and by
judgment dated 24.03.2011 granted compensation in the sum of ₹9,07,875/-
with interest at 7.5% per annum, calculating it, thus :
Loss of dependency : Rs. 8,62,875/-
Funeral Expenses : Rs. 10,000/-
Loss of love & Affection : Rs. 15,000/-
Loss of consortium : Rs. 10,000/-
Loss of estate : Rs. 10,000/-
TOTAL : Rs. 9,07,875/-
2. The insurance company had taken the plea that there was a breach of
terms and conditions of the insurance policy which was upheld. Though the
insurance company was directed to satisfy the award, it was granted
recovery rights against the owner of the TSR.
3. By appeal at hand, the insurance company has questioned the
computation of loss of dependency on the ground that future prospects have
been wrongly factored in to the extent of 50% and that there is an error in
the calculation. While referring to the dictum in Sarla Verma (Smt.) & Ors.
v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 the first
contention raised is that the future prospects could not have been added. At
the same time, it is submitted that having regard to the age of the deceased it
could not have been more than 30%.
4. Per contra, the counsel for the claimants (first to fourth respondents)
has submitted that the award of non-pecuniary damages and the rate of
interest levied are inadequate.
5. The submission of the insurer against inclusion of the element of
future prospects ignores the unrebutted evidence on record showing that the
deceased was a regular employee of Sangam Theatres Pvt. Ltd., which was
even granting him such benefits as gratuity, bonus etc. Having regard to the
evidence of employment and the benefits accruing therefrom as proved by
his widow (Prem Kashyap) through her unchallenged testimony, there can
be no doubt about the submission that the salary and allowance of the
deceased would have been subject to periodic increase.
6. But, the tribunal has undoubtedly committed arithmetic errors in
calculating the notional income for computing the loss of dependency.
Further, going by the dictum in Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121, having regard to the age
of the deceased, the element of future prospects should have been restricted
to 30% only. There is merit also in the grievance of the claimants that the
non-pecuniary heads of damages have not resulted in adequate awards.
Therefore, the compensation is recalculated.
7. On the monthly income of ₹2,950/-, adding the element of future
prospects of increase to the extent of 30% would mean the loss of
dependency has to be worked out on notional income of (2,950 x 130 ÷ 100)
₹3,835/-. Since the number of dependents were four, 1/4th has to be deducted
towards personal and living expenses. Thus, the monthly loss of
dependency is (2,335 x 3 ÷ 4) ₹2,876.25. On the multiplier of 13, the total
loss of dependency comes to (2,876.25 x 12 x 13) ₹4,48,695/- rounded off
to ₹4,49,000/-.
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 `1 lakh each on account of loss 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 (4,49,000 + 2,50,000) `6,99,000/- rounded off to
`7,00,000/-.
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 compensation was apportioned by the tribunal by granting 10%
each to the second, third and fourth respondents and the balance to the first
respondent (widow). The fourth respondent (mother) has since died and her
name has been deleted from the array of parties. In these circumstances, it is
directed that her share shall be made over to the first respondent (widow).
11. By order dated 27.05.2011, the insurance company had been directed
to deposit `5,52,725/- with interest at 7.5% per annum with the Registrar
General of this Court within the period specified whereupon 50% of the said
amount was allowed to be released, the balance kept in fixed deposit receipt
with nationalized bank initially for a period of one year.
12. The Registrar General shall now calculate the sums payable to the
claimants and release the same with proportionate interest in their 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 duty bound 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
