Delhi High Court
Sanjeev vs The New India Insurance Co. Ltd & ... on 4 May, 2016
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 04.05.2016
+ MAC.APP. 218/2014
NEW INDIA ASSURANCE COMPANY LTD ..... Appellant
Through Mr. Ravinder Singh and Ms.
Raveesha Gupta, Advs.
versus
SAVITRI DEVI & ORS ..... Respondent
Through None
+ MAC.APP. 477/2014
SANJEEV ..... Appellant
Through Mr. Pradeep Kumar Arya, Mr.
Narinder Chaudhry and Mr. Raj
Karan Sharma, Advs.
versus
THE NEW INDIA INSURANCE CO. LTD & ORS
..... Respondent
Through Mr. Ravinder Singh and Ms.
Raveesha Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sonia, a young unmarried girl of 22 years age died on account of
injuries suffered in a motor vehicular accident that occurred on 16.05.2012
involving negligent driving of truck bearing registration No.HR-63A-5165
(the offending vehicle), admittedly insured against third party risk for the
period in question with New India Insurance Co. Ltd. (appellant in
MAC.APP.No.218/2014). Her mother (first respondent in
MAC.APP.No.218/2014) instituted an accident claim case (suit No.13/12)
on 11.10.12 seeking compensation, impleading New India Insurance Co.
Ltd. (insurer) as one of the party respondents in addition to Sanjeev son of
Gyan Chand (appellant in MAC.APP.No.477/2014) and Ram Lal son of
Fannu Paswan (third respondent in MAC.APP.No.218/2014) on the
averments that they are the owner and driver respectively of the offending
vehicle. The tribunal held inquiry and, by judgment dated 20.12.2013,
upheld the case of the claimant that death of Sonia had occurred due to
negligent driving of the offending vehicle. It assessed the compensation in
the sum of `11,41,000/- and awarded it with interest at 7.5% per annum
from the date of filing of the petition in favour of the claimant, the said
amount inclusive of loss of income (dependency loss) in the sum of
`10,95,120/- besides `25,000/- towards loss of love & affection and
`20,000/- towards funeral expenses.
2. The insurer had pleaded that there was a breach of terms and
conditions of the insurance policy as the driver did not possess a valid or an
effective driving license. In absence of any evidence to the contrary from
the driver or owner of the offending vehicle the tribunal upheld this
contention. Thus, the insurer while being directed to pay the compensation
to the claimant was granted recovery rights against the owner.
3. The insurer is in appeal (MAC.APP.No.218/2014) on the ground that
the future prospects have been wrongly added over and above the income of
the deceased notionally assessed on the basis of minimum wages (`7,020/-)
of an unskilled worker. It is noted at the same time that the award under the
non-pecuniary heads of damages and the rate of interest levied by the
tribunal are inadequate.
4. The owner of the offending vehicle is in appeal
(MAC.APP.No.477/2014) on the plea that the driver was in possession of a
valid driving license issued by the license authority at Nagaland, it being
valid for the period 21.11.2011 to 07.04.2015 for heavy transport vehicle. A
copy of what purports to be a driving license so issued along with a
verification report purportedly issued by office of District Transport Officer,
Motor Vehicles Department, Nagaland have been submitted with the said
appeal (pages 46 - 49 of paper book).
5. Arguments have been heard. Record perused.
6. The claimant had submitted before the tribunal that the deceased was
employed with Aanganwari Kendra from where she was earning `4,000/- as
salary and further that she was also earning `15,000/- from tutorial services
rendered. The evidence led in this regard was not believed by the tribunal,
apparently as no formal proof was produced. The tribunal, thus, proceeded
to assume the income notionally and further added future prospects.
7. 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.
8. 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.
9. Given the facts and circumstances of the case at hand, there was no
occasion for future prospects to be added in absence of formal proof of
income. It also, however, need be noted that the claimant had proved
document (Ex.PW1/6) showing that the deceased was a matriculate. In
these circumstances, the minimum wages of a matriculate (`8,528/-) should
have been adopted. The calculation of loss of dependency is, thus, made
afresh. After deduction of ½ towards personal & living expenses, and
applying the multiplier of 13, rightly so chosen, the loss of dependency is
calculated as (8,528 ÷ 2 x 12 x 13) `6,65,184/- rounded off to `6,70,000/-.
10. 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 on account of loss of love & affection
and `25,000/- each towards loss of estate and funeral expenses are added.
Thus, the total compensation payable in the case comes to (6,70,000 +
1,50,000) `8,20,000/-.
11. 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.
12. The award is modified as above.
13. Coming to the contention of the owner of the offending vehicle in his
appeal, the learned counsel for the insurer fairly conceded that since the
document purporting to be a license is now being shown and since it has
been submitted on behalf of the owner of the offending vehicle that the
document is genuine and he is ready to lead formal evidence to prove this
contention, the matter to that extent would require further inquiry. In view
of the above, the limited issue as to whether there was a breach of terms and
conditions of the insurance policy is remitted for further inquiry to the
tribunal for fresh adjudication. For purposes of such inquiry, it shall
primarily be the burden of the owner of the offending vehicle Sanjeev to
prove by positive cogent evidence that the driver of the offending vehicle
(i.e. Ram Lal) was in possession of a driving license valid and effective for
purpose of the offending vehicle on the date of accident. If owner of the
offending vehicle successfully brings home this contention, the recovery
rights granted by the tribunal would stand set aside. Conversely, if he were
to fail in proving the said contention, the insurer will be at liberty to recover
the compensation paid in the case along with the component of interest from
the owner of the offending vehicle. If the tribunal returns a finding that the
document thus presented is not genuine, it shall consider expediency of
initiating proceedings against the owner and driver under the criminal law
and pass necessary orders.
14. The parties are directed to appear before the tribunal for above limited
inquiry on 18.07.2016.
15. By order dated 12.03.2014 (in MAC.APP.No.218/2014), the
insurance company had been directed to deposit the entire awarded amount
with up-to-date interest accrued with the Registrar General of this Court
within the specified period, out of which 80% was allowed to be released,
the balance directed to be kept in fixed deposit receipt with UCO Bank,
Delhi High Court branch for a period of one year to be renewed periodically.
The Registrar General shall now calculate the amount payable to the
claimant in this case and release the balance, if any, to her from out of the
fixed deposit receipt, refunding the excess, if any, to the insurance company,
along with statutory deposit, if made.
16. Both appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 04, 2016
VLD
