Delhi High Court
The New India Assurance Co.Ltd. vs Sangeeta Bhardwaj And Ors. on 2 May, 2016
$~R-54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02nd May, 2016
+ MAC.APP. 463/2007 & CM no.10338/2007
THE NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. Shoumik Mazumdar & Mr.
Pankaj Seth, Adv.
versus
SANGEETA BHARDWAJ AND ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sanjeev Bhardwaj, then aged 32 years, concededly self employed in a
business, died as a result of injuries suffered in a motor vehicular accident
that occurred on 25.06.1999, involving negligent driving of vehicle bearing
registration no.UP-12A-1947 (the offending vehicle), admittedly insured
against third party risk with the appellant/insurance company for the period
in question. His wife, two children and mother instituted an accident claim
case (suit no.160/2000) on 23.02.2000 seeking compensation under Sections
166 & 140 of the Motor Vehicles Act, 1988 (the MV Act) impleading the
insurer as one of the respondents, in addition to driver and owner of the
offending vehicle. Upon inquiry, the tribunal found, by judgment dated
24.04.2007, that the case of death on account of negligent driving on
account of offending vehicle has been brought home. It assessed
compensation in the sum of `7,60,000/- which includes loss of dependency
worked out as `7,14,000/-, besides `5,000/- towards funeral expenses and
`20,000/- towards loss of love & affection and loss of consortium. The
compensation was awarded at the rate of 8% per annum from the date of
filing of the petition till realization and the insurance company was directed
to pay.
2. The insurance company, by appeal at hand, questions the calculation
of dependency loss.
3. It is noted that the claimants had relied upon income tax return (ITR)
for the assessment year 1998-99 (Ex.PW1/A) submitted with the affidavit of
the first respondent (page 59-61 of the tribunal's record). The ITR would
show that the deceased was earning livelihood in the form of profits from
business which were `42,310/- for the assessment year 1998-99. As against
the said income he had paid income in the sum of `300/-. It, however,
proceeded to add future prospects and calculated the loss of dependency on
the assumed income of `5250/- and applied the multiplier of 17, after
deducting one third towards loss of love & affection. It is the addition of
element of future prospects which is the bone of contention raised by the
appeal at hand, besides the multiplier of 17 which, it is submitted, should
have been 16.
4. 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.
5. 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.
6. Since the deceased was self-employed and the evidence of the
claimants would not show any progressive rise, the element of future
prospects has to be kept out. Similarly, per the ruling in Sarla Verma
(supra), the multiplier of 16 would apply. It is also noted that the deduction
towards personal and living expenses could not have been one fourth as the
number of dependants are four.
7. Therefore, the loss of dependency is recalculated as
(3500x3/4x12x16) `5,04,000/-. The accident had occurred on 25.06.1999.
Following the view taken in a case FAO 102/2001, Madhu Marwaha & Anr.
vs. Dal Chand & Anr. decided on 01.02.2016, non-pecuniary damages in
the sum of `50,000/- each on account of loss of consortium and loss of love
& affection and `10,000/- each towards loss of estate and funeral expenses
are added. In the result, the total compensation payable in the case comes to
(5,04,000+1,20,000) `6,24,000/-.
8. It is noted that the rate of interest awarded by the tribunal 8% per
annum is on the lower side. 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.
9. The tribunal awarded `1,00,000/- each to the second, third and fourth
respondents, the balance being payable to the first claimant (first
respondent). By order dated 03.08.2007, the insurance company had been
directed to deposit 60% of the awarded amount with accrued interest which
was allowed to be released to the claimant. In the given facts and
circumstances where the award has been reduced, it is directed that the share
of second to fourth respondents shall be restricted to what has already been
received by them under the above said order, the entire balance now being
payable to the first respondent (the first claimant) alone.
10. The insurance company shall satisfy the balance of the award in terms
of the modification ordered above by requisite deposit with the tribunal
within 30 days for the same to be released to the first claimant.
11. The statutory deposit, if made, shall be refunded.
12. The appeal (with application) are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 02, 2016
ssc
