Delhi High Court
National Insurance Co.Ltd. vs Jerald Samuel Soloman & Ors. on 6 May, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.05.2016
+ MAC.APP. 107/2013
NATIONAL INSURANCE CO.LTD.
..... Appellant
Through Mr. Pankaj Seth, Adv.
versus
JERALD SAMUEL SOLOMAN & ORS.
..... Respondent
Through Mr. Mukesh Kumar Sharma, Adv. for
R-1 & 2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Akshay Soloman, aged about 21 years, a bachelor, working as sales
executive with M/s Maa Jagdamba Enterprises on regular basis with the
then emoluments in the sum of Rs.14,800/- per month died as a result of
injuries suffered in a motor vehicular accident that took place on 30.11.2010
involving negligent driving of a bus bearing registration No.DL 1PB 3657
(offending vehicle), admittedly insured against third party risk with the
appellant company (insurer). His parents, first and second respondents
(claimants) preferred an accident claim case (No.584/10) on 13.12.2010 on
the basis of the detailed accident report (DAR) submitted by the local police
based on evidence gathered during investigation into first information report
(FIR) No. 357/10 of police station Punjabi Bagh respecting the said
accident. In the proceedings before the tribunal thus instituted, the insurer
was impleaded as a party respondent in addition to driver and owner of the
offending vehicle with the averments that the accident had occurred because
of negligence on the part of the driver of the offending vehicle. The tribunal
held inquiry and, by judgment dated 09.10.2012, upheld the case of the
claimants about death having occurred due to negligent driving of the
offending vehicle and awarded compensation in the sum of Rs.25,17,600/-
with interest in favour of the claimants, the said amount inclusive of
Rs.23,97,600/- calculated on the monthly loss of dependency of Rs.11,100/-
which was capitalized on the multiplier of 18.
2. The insurer by the appeal at hand submits that the evidence on record
concerning the allegation of negligence was not properly considered and a
finding returned discussing the material in a cryptic manner. The insurer is
also aggrieved with the multiplier of 18 having been adopted on the basis of
age of the deceased. It points out that the age of the father on the relevant
date was 53 years and that of the mother 41 years, this on the basis of their
respective election identify cards (at pages 103 and 111 of the tribunal's
record). In this view the insurer submits that the average age of the parents
being 47, and so, the multiplier of 13 should have been applied placing
reliance on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation &
Anr., (2009) 6 SCC 121.
3. The grievance of the insurance company about the reasoning set out
in the impugned judgment on the issue of negligence seems to be correct.
The tribunal was duty-bound to take into consideration the evidence
adduced and give out its reasons as to why the plea of negligent driving was
being accepted. Cryptic reasoning amounts to short-shrifting the issue
which is not only undesirable but impermissible.
4. Be that as it may, the evidence on record has now been considered.
5. It is noted that the claimants had examined Pankaj Sharma (PW2),
who was an eye-witness to the occurrence, he being present at the scene as
another motorist moving on the road at the relevant point of time. His
evidence clearly brings out that the offending vehicle had hit the motorcycle
from behind while both were moving in the same direction. In a collision of
this nature, the burden of explaining as to why the accident occurred in the
manner shown would primarily lie on the motor vehicle which was in the
rear. No evidence having been led by the driver or owner of the offending
vehicle in such regard, the explanation is amiss. In these circumstances, the
inference of negligent driving is bound to be drawn.
6. The contention of the insurer with regard to multiplier is correct.
Having regard to the age of the claimants, the appropriate multiplier was 13.
It is well settled that in such cases loss of dependency has to be calculated
on the basis of age of the deceased or the claimants whichever is higher.
[G.M. Kerela SRTC vs Susamma Thomas (1994) 2 SCC 176; U.P.S.R.T.C.
vs Trilok Chandra (1996) 4 SCC 362; New India Assurance Co. Ltd. vs
Charlie AIR 2005 SC 2157; New India Assurance Co. Ltd. vs Shanti Pathak
(Smt.) & Ors., (2007) 10 SCC 1; Ramesh Singh & Anr. vs Satbir Singh &
Anr. (2008) 2 SCC 667; National Insurance Company Ltd. vs Shyam Singh
& Ors. (2011) 7 SCC 65; Ashwinbhai Jayantilal Modi vs Ramkaran
Ramchandra Sharma & Anr. (2015) 2 SCC 180]
7. The monthly loss of dependency having been worked out to `11,100/-,
the total dependency loss on the multiplier of 13 is computed as (11,100 x
12 x 13) `17,31,600/-. Since the tribunal had calculated this component at
`23,97,600/-, the compensation awarded has to be reduced by (23,97,600 -
17,31,600) `6,66,000/-.
8. It is noted that the tribunal has awarded only `10,000/- each towards
funeral charges and loss to estate. Following the view taken in Rajesh &
Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, these amounts are increased to
`25,000/- each. Thus, the net reduction in the compensation would be to the
sum of `6,36,000/-. Therefore, the compensation is reduced to (25,17,600 -
6,36,000) `18,81,600/- rounded off to `18,82,000/-.
9. 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.
10. The award is modified as above.
11. By order dated 07.02.2013, the insurance company had been directed
to deposit the entire awarded compensation with upto date interest with the
UCO Bank, Delhi High Court Branch within the period specified and out of
such deposit, 50% was allowed to be released to the claimants in terms of
the impugned judgment, the balance having been kept in fixed deposit
receipt in the account of first respondent, the original fixed deposit receipt to
be kept in the UCO Bank, Delhi High Court Branch.
12. 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 deposit, if made, to the insurer. Conversely, if more amount is
required to be paid, the insurer shall be obliged to deposit the same with
interest with the tribunal within 30 days of this judgment whereupon it shall
be released to the claimants accordingly.
13. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 06, 2016
VLD
