Delhi High Court
Saroj & Ors vs National Insurance Company Ltd on 9 May, 2016
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 09th May, 2016
+ MAC.APP. 35/2014
NATIONAL INSURANCE COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
versus
SAROJ & ORS ..... Respondent
Through: Mr. O P Mannie, Adv. for R-1 to 4
+ MAC.APP. 662/2014
SAROJ & ORS ..... Respondent
Through: Mr. O P Mannie, Adv.
versus
NATIONAL INSURANCE COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Ramesh Kumar Arora suffered injuries in a motor vehicular accident
that occurred on 09.07.2007 involving negligent driving of truck No.DL
1GA 3906 (the offending vehicle) admittedly insured against third party risk
with National Insurance Company Ltd. (appellant in
MAC.APP.No.35/2014). The injuries suffered included those in the head
region and accident claim case was filed on 31.08.2007 on his behalf by his
wife, inter alia, stating that due to the injuries he had been rendered
mentally challenged. In the claim petition (MACT No.141/09/13), the
insurance company was impleaded as a party respondent in addition to the
driver and owner of the offending vehicle. The petition was contested. The
victim Ramesh Kumar Arora, however died on 08.03.2009 during the
pendency of the proceedings before the tribunal. On the application moved
by the dependent family members (appellants in MAC.APP.No.662/2014),
the case was converted into one seeking compensation on account of death
in the motor vehicular accident.
2. The proceedings resulted in judgment dated 17.10.2013 of the motor
accident claims tribunal (tribunal) upholding the case that Ramesh Kumar
Arora having been injured in the motor vehicular accident on 09.07.2007 on
account of negligent driving of the offending vehicle had consequently died
on 08.03.2009. The tribunal, by the impugned judgment later corrected by
order dated 31.01.2014, awarded compensation in the sum of ₹8,21,512/-
with interest at 9% per annum from the date of filing of the amended
petition (09.11.2009) till realization. The amount of compensation was
calculated, thus :
Pecuniary Damages:
1) Loss of dependency ------------ Rs. 3,95,062.80
2) Funeral charges ------------ Rs. 25,000/-
3) Loss of Estate ------------ Rs. 10,000/-
4) Loss of consortium ------------ Rs. 1,00,000/-
Non Pecuniary Damages:
5) Loss of love, company and affection etc. ----- Rs. 1,00,000/-
6) Loss of gratuitous services ------------ Rs. 50,000/-
7) Medical expenses ------------ Rs. 1,41,450/-
Total = Rs. 8,21,512/-
3. The insurer, which has been fastened with the liability, has come up
in appeal (MAC.APP.No.35/2014) contending that connection between the
injuries suffered in accident and the death was not proved. It also questions
the computation of compensation submitting that element of future
prospects to the extent of 15% was improper. It is further aggrieved with
awards under non-pecuniary heads of damages submitting that they are
inflated. Per contra, the claimants by their appeal
(MAC.APP.No.662/2014) urge that the interest should have been levied
from the date of filing of the original petition rather than from the date of
amended petition.
4. Having heard both sides and having gone through the tribunal's
record, this Court finds the argument about the cause of death to be
improper. The tribunal has discussed this aspect at length in the context of
second issue and noted, inter alia, that the medical treatment record includes
the treatment for a head injury as late as on 24.02.2009. Since the medical
record clearly shows after the accident the victim had remained under
prolonged treatment, there can be no doubt as to the fact that the death is
attributable to the injuries suffered in the accident. The finding returned by
the tribunal in this regard must be upheld.
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. The claimants were unable to muster any clear proof as to the nature
of avocation of the deceased prior to the accident. In these circumstances,
the income was notionally assessed on the basis of minimum wages
(₹3,470/-). Thus, the loss of dependency has to be calculated without the
element of future prospects. The deceased was 54 years old at the time of
death. Therefore, the multiplier of 11 applies. After deducting 1/4 th towards
personal and living expenses, the total dependency loss is calculated as
(3,470 x 3 ÷ 4 x 12 x 11) ₹3,43,530/- rounded off to ₹3,45,000/-.
8. The submissions of the insurance company against the non-pecuniary
damages do not deserve to be accepted in view of the fact that having
suffered the injuries on 09.07.2007, the victim had remained under
treatment till death on 08.03.2009. This definitely would have required
more than normal gratuitous services to be provided by the wife (first
claimant).
9. The total award payable in the case comes to (3,45,000 + 25,000 +
10,000 + 1,00,000 + 1,00,000 + 50,000 + 1,41,450) ₹7,71,450/- rounded off
to ₹7,72,000/-. The claimants shall be entitled to interest from the date of
filing of the original petition (i.e. 31.08.2007) till realization.
10. The tribunal had apportioned the award by specifying the amounts
payable to the claimants. By order dated 15.01.2014, in
MAC.APP.No.35/2014, the insurer had been directed to deposit the entire
awarded amount with up-to-date interest within the period specified and out
the same 60% was allowed to be released to the claimants as per the
impugned judgment, the balance kept in fixed deposit receipt with UCO
Bank, Delhi High Court branch. In the facts and circumstances, it is
directed that the amounts already released in favour of the second to fourth
respondents shall be treated as their respective shares in the compensation,
the entire balance to now go only to the first respondent (wife).
11. The Registrar General shall calculate the amount payable to the
claimants in terms of the directions and release the same from out of the
balance held in deposit, refunding the excess, if any, to the insurance
company.
12. The statutory deposit, if made, shall be refunded.
13. The appeals are disposed of with above observations.
R.K. GAUBA
(JUDGE)
MAY 10, 2016
VLD
