Delhi High Court
The New India Assurance Co Ltd vs Suman & Ors on 11 May, 2016
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th May, 2016
+ MAC.APP. 448/2013
THE NEW INDIA ASSURANCE CO LTD
..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SUMAN & ORS
..... Respondent
Through: Ms. Himani Bhatnagar, Adv. for R-1
to 8
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Chittar Mal, 38 years old working as palledar (loader) suffered
injuries in motor vehicular accident that occurred on 24.09.2011 involving
negligent driving of truck No.HR 37A 3757 (the offending vehicle) and
died in the consequence. The dependent family members of Chittar Mal,
first to eighth respondents (claimants), instituted accident claim case
(MACT No.03/12) on 04.01.2012 impleading the appellant insurance
company (insurer), driver and owner of the offending vehicle as
respondents. It was admitted before the tribunal that the appellant (insurer)
had issued an insurance policy in respect of the offending vehicle against
third party risk for the period in question. The tribunal held inquiry and, by
the judgment dated 16.02.2013, found the case of negligent driving leading
to the fatal accident having been brought home. By the impugned
judgment, it awarded compensation in the sum of ₹13,42,198/- with
interest at 9% per annum, the said amount being inclusive of ₹12,02,198/-
towards loss of dependency, the balance in the total sum of ₹1,30,000/-
awarded as non-pecuniary damages under various heads.
2. The insurance company while contesting the case had pleaded that
there was a breach of terms and conditions of the insurance policy as the
vehicle was not covered by a valid permit for Delhi. This contention was
rejected by the tribunal and the insurance company was directed to pay the
compensation.
3. By the appeal at hand, the insurer questions the calculation of loss of
dependency submitting that the element of future prospects to the extent of
30% was erroneous in a case where income has been assessed notionally on
the minimum wages of ₹6,422/- per month as prevalent at the relevant
point of time. The insurer also presses for recovery rights on the issue of
permit. Per contra, the claimants submitted that the award under the non-
pecuniary damages is inadequate.
4. 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.
5. 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.
6. The deceased was admittedly working as a loader. There is no
evidence adduced as to his regular employment or earnings. With no
evidence whatsoever having been brought out to show progressive rise in
income, the dependency loss has to be worked out without the element of
future prospects. After deducting 1/5th towards personal & living expenses
(noticeably, there are eight claimants) on the multiplier of 15 in view of the
age of the deceased, the dependency loss is calculated as (6,422 x 4 ÷ 5 x
12 x 15) Rs.9,24,768/- rounded off to Rs.9,25,000/-.
7. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of Rs.1 lakh each on account of loss of love &
affection and loss of consortium and Rs.25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation payable in the
case comes to (9,25,000 + 2,50,000) Rs.11,75,000/-. Needless to add, it
shall carry interest as levied by the tribunal.
8. The tribunal by the impugned judgment had specified the amounts
falling to the respective shares of different claimants.
9. By order dated 17.05.2013, the insurance company had been directed
to deposit the entire awarded amount with up-to-date interest whereupon
70% was allowed to be released, the balance kept in fixed deposit receipt
with UCO Bank, Delhi High Court branch initially for a period of six
months to be renewed periodically. Since the award has been reduced, it is
directed that the amounts already released to the other claimants shall be
treated as their respective shares and the balance now payable shall entirely
go to the first respondent (widow) alone.
10. It was not disputed before the tribunal that the vehicle was not
covered by a valid permit for the Union Territory of Delhi. The vehicle is
registered in the State of Haryana. In these circumstances, the plea of
insurance company about breach of terms and conditions of the insurance
company should have been accepted. Thus, it is granted recovery rights
against the owner and driver.
11. Statutory deposit, if made, shall be refunded.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 11, 2016
VLD
