Delhi High Court
Oriental Insurance Co. Ltd. vs Renu Devi & Ors. on 6 May, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.05.2016
+ MAC.APP. 429/2013
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Amit Gaur and Mr. Pradeep Gaur,
Advocates
versus
RENU DEVI & ORS. ..... Respondents
Through: Ms. Neha Garg, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sanjay Kumar Bansal, aged 36 years old, employed as a Senior Sales
Executive with a private business house named as M/s. Balaji Distributors at
a consolidated salary of `12,000/- p.m. suffered injuries in a motor
vehicular accident that occurred on 17.03.2010 involving negligent driving
of a motor vehicle described as Force Trax Cruiser bearing registration
no.HR-99 DH (Tempo) 1563 and died in the consequence. His dependent
family members, first to seventh respondents (claimants) instituted an
accident claim case (case no.231/10) on 17.04.2010, on the basis of
Accident Information Report (AIR), in which proceedings the appellant
insurance company (insurer) was also impleaded as a respondent, it
concededly having issued an insurance policy in respect of the offending
vehicle against third party risk for the period in question.
2. After inquiry, the Motor Accident Claims Tribunal (Tribunal), by
judgment dated 01.12.2012, held that the death had occurred due to
negligent driving of the offending vehicle by the eight respondent (first
respondent before the tribunal). It awarded compensation in the sum of
`25,82,200/- with interest at the rate of 7.5% from the date of filing of the
petition till the notice under Order 21 Rule 1 of the Code of Civil Procedure,
1908 (CPC) is given by the insurance company and asked the insurer to
pay. The said amount includes `10,000/- towards funeral expenses,
`25,000/- towards loss of love & affection, `10,000/- towards loss of estate
and `10,000/-towards loss of consortium besides `25,27,200/- calculated as
loss of dependency on the multiplier of 15 (rightly so chosen) though after
the emoluments from the private service (`12,000/- p.m.) had been
appreciated by addition of 30% towards future prospects and 1/10 th had been
deducted towards personal & living expenses.
3. The insurer, by the appeal at hand, questions the computation of loss
of dependency taking exception to the element of future prospects and
deduction on account of personal & living expenses to the extent of 1/10 th.
It also submits that there was a breach of the terms and conditions of the
insurance policy as permit of the offending vehicle was not produced, in
spite of the notice.
4. Per contra, the claimants argue through counsel that the awards under
the non-pecuniary heads of damages and rate of interest are inadequate.
5. 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.
6. 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.
7. Having heard both sides and having gone through the record, this
court finds substance in the submission of the insurance company against
addition of future prospects. PW-2, who stepped into the witness box to
prove the engagement in private service of the deceased, did not produce
any material to show the regular employment of the deceased with
any stipulation for progressive rise in income. Hence, the element of future
prospects has to be kept out.
8. In the judgment of Sarla Verma (supra), the Supreme Court had
specified the deduction towards the personal & living expenses to be to the
extent of 1/5th in cases where the number of dependants were more than 6.
This dispensation was approved by a bench of three Hon'ble Judges of the
Supreme Court in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013)
9 SCC 65.
9. In these circumstances, the calculation of loss of dependency is to be
worked out without the element of future prospects and by taking personal
& living expenses to the extent of 1/5 th only. Thus the total loss of
dependency comes to (`12,000/- x 4/ 5 x 12 x 15) `17,28,000/-
10. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.
(2013) 9 SCC 54 Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the
non-pecuniary damages in the sum of `1,00,000/- each towards loss of love
& affection and loss of consortium and `25,000/- each towards funeral
expenses and loss to estate are added.
11. Thus, the total compensation comes to (`17,28,000/- + 2,50,000/-)
`19,78,000/-
12. Following the consistent view taken by this court, the rate of interest
is increased to 9% p.a. from the date of filing of the petition till realization.
[see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance
Co Ltd v. Sangeeta Devi & Ors.].
13. The award is modified as above.
14. By order dated 13.05.2013, the insurance company had been directed
to deposit the entire awarded compensation with upto date interest with the
Registrar General within the period specified and out of such deposit eighty
percent (80%) was allowed to be released to the claimants in terms of the
impugned judgment, the balance having been kept in fixed deposit in the
UCO Bank, Delhi High Court Branch, New Delhi, initially for a period of
six months with a provision for periodical renewal.
15. 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 direction, refunding the excess, if any, with
statutory deposits, if made, to the insurer. Conversely, if more amount is
required to be paid, the insurer shall be directed to deposit the same with
interest with the tribunal within 30 days of this judgment whereupon it shall
be released to the claimants accordingly.
16. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 06, 2016
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