Delhi High Court
Vijay Kumar Singh & Ors vs The Oriental Insurance Co Ltd on 9 May, 2016
$~1 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 09.05.2016
+ MAC.APP. 418/2015
VIJAY KUMAR SINGH & ORS ..... Appellants
Through: Mr. J.P.N. Shahi, Advocate
versus
THE ORIENTAL INSURANCE CO LTD ..... Respondent
Through: None
+ MAC.APP. 161/2014 and CM No.5402/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: None
versus
VIJAY KUMAR SINGH & ORS ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Deepak Kumar Singh, 21 years old, a bachelor, died as a result of the
injuries suffered in a motor vehicular accident that occurred on 02.07.2006
on account of the negligent driving of a motor vehicle described as a rural
transport vehicle bearing registration no.DL-1V-7855 (offending vehicle)
admittedly insured against third party risk with the Oriental Insurance Co.
Ltd. (appellant in MAC 161/2014). His father, two younger brothers and
grand- mother (who died during the pendency of the proceedings) instituted
an accident claim case (petition no.262/2013) on 28.03.2007 seeking
compensation under Sections 166 and 140 of the Motor Vehicles Act, 1988
(M.V. Act) in which the said insurance company (insurer) was impleaded in
addition to the driver and the owner of the offending vehicle as party
respondents.
2. By judgment dated 16.12.2013, the Motor Accident Claims Tribunal
(tribunal) upheld the case of the claimants (appellants in MAC 418/2015)
about the death having occurred due to the negligent driving of the
offending vehicle. The said finding has attained finality as it was not
challenged. By the said judgment, the tribunal awarded compensation in the
sum of Rs.11,86,000/- calculating it thus :
1. Loss of Dependency ₹11,76,000/-
2. Loss of Love and Affection ₹25,000/-
3. Funeral Expenses ₹25,000/-
4. Loss of Estate ₹10,000/-
₹12,36,000/-
Less: interim award vide order dated ₹50,000/-
24.11.2008
TOTAL ₹11,86,000/-
2.1 The insurer was called upon to pay the compensation with interest at
the rate of 9% p.a. from the date of filing of the petition till realization but in
view of the finding about breach of the terms and conditions of the policy, it
was granted right to recover the same from owner of the offending vehicle
(Dwarka Prasad Gupta).
3. The insurer by his appeal (MACA 161/2014) questions the
computation of loss of dependency, on the ground that salary was wrongly
assumed to be Rs.7,000/- and the element of future prospects was wrongly
added.
4. Per contra, the claimants by their appeal (MACA 418/2015) seek
enhancement of the compensation mainly contending that the award under
non-pecuniary heads of damages is inadequate.
5. Having heard the learned counsel for the insurance company who
only appeared, it is found that its appeal taking exception to the assumption
about income and element of future prospects must be accepted. At the
same time, the claimants' grievance about non-pecuniary damages needs to
be addressed.
6. Though the first claimant (father) appearing as PW-1 relied upon the
salary certificate (Ex. PW1/A), the said document was not strictly proved.
No evidence from the side of the employer was called in. Mere production
of such a document cannot suffice. In absence of proper proof as to the
employment of the deceased, the assessment of the income has to be made
on the basis of minimum wages. Since the deceased was a matriculate,
minimum wages of Rs.3719/- may be assumed to be the monthly income.
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. Since the income of the deceased is notionally assessed, the element
of future prospects need not be factored in. Having regard to the fact that
the deceased was a bachelor and the age of the claimant father was 41 years,
the loss of dependency has to be calculated with 50% deduction towards
personal and living expenses and on the multiplier of 14. Thus, the
dependency loss is calculated as ( ₹ 3719/2 x 12 x 14) Rs.3,12,396/-,
rounded off to Rs.3,15,000/-.
10. Following the law laid down in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
an award of Rs.1 Lakh towards loss of love and affection and Rs.25,000/-
each towards funeral expenses and loss to estate are added. Thus, the total
compensation in the case is computed as ( ₹ 3,15,000/- + ₹ 1,50,000/- ) ₹
4,65,000/-. An amount of ₹50,000/- paid in terms of the interim award
shall be adjusted. The net award shall carry interest at the rate of 9% p.a. as
levied by the tribunal.
11. By order dated 17.02.2014, the insurance company had been directed
to deposit the entire awarded amount with upto date interest with the
Registrar General of this court, within the period specified and out of the
same, 70% was allowed to be released to the claimants, the balance kept in
fixed deposit receipt with UCO Bank, Delhi High Court Branch, New Delhi
with a provision for renewal.
12. The Registrar General shall now calculate the amount payable to the
claimants in respect of the modified award. If any amount is outstanding,
the same shall be now released. The amount deposited by the insurance
company over and above its liability under the modified award with
statutory amount, if deposited, shall be refunded.
13. Both appeals and the pending application are disposed of in above
terms.
R.K. GAUBA
(JUDGE)
MAY 09, 2016
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