Delhi High Court
The New India Assurance Company ... vs Manokanika Dube & Ors on 2 May, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02nd May, 2016
+ MAC.APP. 131/2013 & CM no. 2432/2013
THE NEW INDIA ASSURANCE COMPANY LTD ..... Appellant
Through: Mr.Vinod Trisal, Adv.
versus
MANOKANIKA DUBE & ORS ..... Respondents
Through: Mr. Sudesh Kumar Goyal, Adv. for
R-2 to 8.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Manish Kumar, then aged 20 years, died as a result of injuries
suffered in a motor vehicular accident that occurred on 19.01.2009 involving
negligent driving of truck bearing registration no.HR-38G-9387 (the
offending vehicle), concededly insured against third party risk with the
appellant/insurance company (the insurer) for the period in question. An
accident claim case (case no.511/2009) was instituted on 17.03.2009 by first
to eighth respondents (the claimants), they being the father and elder
siblings of the deceased, he being a bachelor and his mother having pre-
deceased. The first claimant (first respondent), the father of the deceased,
died during the pendency of the inquiry before the tribunal. The tribunal, by
judgment dated 31.10.2012, upheld the case of death having occurred due to
negligent driving of the offending vehicle and awarded compensation in the
sum of `3,79,260/- with interest at the rate of nine percent (9%) per annum
in favour of the claimants. The insurance cover having been admitted, the
appellant was directed to satisfy the award.
2. The awarded compensation includes a sum of `3,34,260/- calculated
as loss of dependency on the minimum wages of `4127/- on which 50% was
added towards future prospects and after deduction of one half (1/2),
multiplier of 9 was applied. The tribunal also added `10,000/- each towards
funeral & miscellaneous expenses and loss of estate, besides `25,000/-
towards loss of love & affection.
3. The insurer questions the computation of loss of dependency on the
ground that the future prospects could not have been added. This
submission, in facts and circumstances of the case, must be upheld.
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 there was no cogent proof of income of the deceased, the
income was notionally assessed on the minimum wages. There being no
proof of progressive rise, the loss of dependency has to be calculated
without the element of future prospects.
7. After deduction of half (1/2) towards personal and living expenses, on
the multiplier of 9, the loss of dependency is recalculated as (4127/2x12x9)
`2,22,858, rounded off to `2,23,000/-.
8. Following the law laid down in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
the awards of `1,00,000/- towards loss of love & affection and `25,000/-
each towards funeral expenses and loss to estate are added. Thus, total
compensation in the case comes to (2,23,000+1,50,000) `3,73,000/-.
9. The award is reduced accordingly. It shall carry interest as levied and
shall be apportioned in the manner directed by the tribunal.
10. By order dated 11.02.2013, the insurance company was directed to
deposit the entire awarded amount with up-to-date interest, with the
Registrar General and out of said deposit 70% was allowed to be released,
the balance kept in fixed deposit receipt with UCO Bank, Delhi High Court
branch in the form of fixed deposit receipt in the account of respondent no.1
Manokanika Dube/claimant. The Registrar General shall calculate the
amount payable to the claimants in terms of the award modified as above
and release the balance to them refunding the excess in deposit with
statutory deposit, if made, to the insurance company.
11. The appeal (with application) is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 02, 2016
ssc
