Delhi High Court
New India Assurance Co Ltd vs Nirmala Devi & Ors on 11 May, 2016
$~R-82
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th May, 2016
+ MAC.APP. 575/2007
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
NIRMALA DEVI & ORS ..... Respondent
Through: Mr. Jatinder Kamra, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sehdev Prasad Shukla, found to be then aged 48 years, died as a
result of injuries suffered in a motor vehicular accident that occurred on
29.05.2006 involving truck bearing No.HR 46B 2216 (the offending
vehicle) admittedly insured against third party risk with the appellant
insurance company. The first to sixth respondents (claimants), dependant
family members, instituted an accident claim case (petition No.862/06) on
31.07.2006 under Sections 166 & 140 of Motor Vehicles Act, 1988 (MV
Act) impleading the appellant insurance company (insurer) as one of the
respondents since the offending vehicle was insured with it for the period in
question, in addition to the driver and owner of the offending vehicle.
Tribunal noted in the impugned judgment that there was no proof of
negligent driving being the cause of the accident. It, however, decided to
treat the claim petition as one under Section 163A of MV Act. By
judgment dated 14.06.2007, it awarded compensation in the total amount of
compensation of the sum of ₹5,15,123/- with interest at 7.5% per annum.
It calculated the loss of dependency at ₹4,35,123/- assuming the income of
the deceased at ₹3,719/- per month, it being the minimum wages payable
to a matriculate at the relevant point of time and after deduction of 1/4th
towards personal & living expenses applied the multiplier of 13. The
amounts of ₹60,000/- towards loss of love & affection and ₹20,000/-
towards funeral expenses were also added.
2. The insurance company which was directed to pay has come up in
appeal taking exception to the award mainly submitting that the calculation
of compensation is not in accord with the second schedule to the MV Act
which would govern the case since the tribunal resorted to work out the
same under Section 163A. At the hearing, neither side has appeared to
assist.
3. On perusal of the tribunal's record, it is noted that the age of the
deceased was taken as 48 on the basis of what was mentioned to be the
post-mortem examination report. It is not clear as to what was the basis of
the said mention of age recorded by the autopsy doctor. The copy of the
ration card (Ex.PW1/7) on record instead shows the age of the deceased
was 45 years at the relevant point of time. In these circumstances, the
tribunal fell into error by taking the multiplier of 13. The proper multiplier
for calculating the loss of dependency would have been 14. As per the
second schedule, the personal & living expenses are to be deducted at the
rate of 1/3rd. Thus, the dependency loss in the present case is recalculated
as (3,719 x 2 ÷ 3 x 12 x 14) ₹4,16,528/- rounded off to ₹4,20,000/-.
4. Under the second schedule, the non-pecuniary damages in the sum of
₹2,000/- towards funeral expenses, ₹5,000/- towards loss of consortium
and ₹2,500/- towards loss to estate are also added. Thus, the total
compensation in the case comes to (4,20,000 + 9,500) ₹4,29,500/- rounded
off to ₹4,30,000/-.
5. 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.
6. By order dated 19.09.2007, the insurance company had been directed
to deposit the enter awarded amount with the Registrar General within the
period specified. By order dated 20.04.2009, the said deposited amount
was transferred to the tribunal which was allowed to release ₹50,000/- to
the first respondent, the balance having been directed to put in fixed deposit
receipt for the period specified. By order dated 08.04.2013, 80% of the
awarded amount in addition to ₹50,000/- already released was also allowed
to be released in favour of the claimants.
7. The tribunal shall calculate the amount now payable to the claimants
under the award modified as above and release the same to them refunding
the excess, if any, to the insurance company. Conversely, if any further
amount is to be paid to the claimants, the insurer shall be obliged to deposit
the same with the tribunal within 30 days hereof making it available for
being released to the claimants.
8. The registry shall refund the statutory amount to the insurer, if
deposited, after confirming that the award has been satisfied.
9. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 11, 2016/VLD
