Delhi High Court
Reliance General Insurance Co Ltd vs Babita Devi And Ors on 3 May, 2016
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03rd May, 2016
+ MAC.APP. 970/2014 & CM no.17702/2014
RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. A. K. Soni, Adv.
versus
BABITA DEVI AND ORS ..... Respondents
Through: Ms. Rupika Singh, Adv. for Mr.
Navneet Goyal, Adv. for R-1 to 5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Rakesh Kumar, aged 35 years, died as a result of injuries suffered in a
motor vehicular accident that occurred on 23.03.2013, involving motor
vehicle described as bearing registration no.HR-55N-9034 (the offending
vehicle) admittedly insured against third party risk for the period in
question. His wife, three children and mother (first to fifth
respondents/claimants) instituted an accident claim case (MACT case
no.168/2013) on 13.08.2013 seeking compensation under Sections 166 &
140 of the Motor Vehicles Act, 1988 (the MV Act) impleading the insurer as
party, in addition to driver and owner of the offending vehicle. The tribunal
held inquiry and, by judgment dated 22.07.2014, upheld the case of the
claimant about death having occurred due to negligent driving of the
offending vehicle. It proceeded to grant an award of `34,75,000/- with
interest at the rate of seven & half percent (7.5%) from the date of filing of
the petition till realization, calling upon the insurer to pay.
2. The insurance company is in appeal questioning the award on the
ground that loss of dependency of `32,40,000/- had been calculated wrongly
accepting the claim that the deceased was earning `15,000/- per month from
private entity described as M/s Chand Singh, functional at RZ-177, J-Block,
New Roshan Pura, Najafgarh, Delhi. It is submitted that the evidence of
Chand Singh (PW3) was wholly unreliable in as much as in the salary
certificate (Ex.PW1/1) issued by him, his salary was shown to be `18,000/-
per month and the witness when called to the witness box contradicted the
certificate issued by him stating that salary was only `15,000/- per month. It
is pointed out that the witness admitted that no records were maintained with
regard to the salary paid to the employees engaged by the firm. The
insurance company also questions addition of future prospects of increase
against the above nature of evidence. Per contra, it is argued by the
claimant's counsel that the award under the head of loss of estate (`10,000/-)
and the rate of interest (7.5%) are inadequate.
3. Having heard the arguments of both sides and having perused the
record, the submission of both sides deserve to be accepted.
4. The evidence led through PW3 is wholly unreliable. It is not shown
by any cogent evidence as to what nature of business done by the private
entity of which the witness claimed to be proprietor. Admittedly, no records
are maintained. There is no proof of salary paid to the deceased by the said
firm. The salary certificate was contradicted by the admission of PW3 in the
witness box and shown in poor light.
5. In these circumstances, there is no escape from calculating the loss of
dependency except on the basis of minimum wages of `7254/- per month
payable to an unskilled worker at the relevant point of time.
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. This applies to the matter at hand because the
claimant here pleaded about gainful employment at a fixed salary and has
not led any evidence showing the salary was subject to any periodic
increase.
8. Since the employment and earnings of the deceased have not been
properly proved and since there is no evidence shown as to progressive rise
in income, the element of future prospects has to be kept out. After
deducting one fourth towards personal and living expenses and applying
multiplier of 16, the total loss of dependency is calculated as
(7254x3/4x12x16) `10,44,576/-, rounded off to `10,45,000/-.
9. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
the awards in the sum of `1,00,000 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 (10,45,000+ 2,50,000) `12,95,000/-.
10. 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.
11. The tribunal had apportioned the award by specifying the amount that
would fall to the share of each claimant. By order dated 31.10.2014, the
insurance company had been directed to deposit the entire awarded amount
with up-to-date interest with accumulated interest with the Registrar General
from which 50% was allowed to be released, the balance kept in FDR, UCO
Bank, Delhi High Court branch for one year with provision for periodical
renewal. Since the award has been reduced, it is directed that the share of
the second to fifth respondents shall be restricted to the amounts already
received by them under the interim order, the entire balance now payable to
fall to the share of first respondent Babita Devi (widow) only. The Registrar
General shall calculate the amount payable to the first respondent under the
modified award and release the same refunding the balance with statutory
deposit, if made, to the insurance company.
12. The appeal (with application) is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 03, 2016
ssc
