Delhi High Court
The Oriental Insurance Co Ltd vs Khursheed & Ors on 13 May, 2016
$~19 to 22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13.05.2016
+ MAC.APP. 698/2014 and CM No.12316/2014 and 11695/2015
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr.J.P.N. Shahi, Advocate
versus
KHURSHEED & ORS ..... Respondent
Through: Mr. Pranav Kumar Choudhary, Adv. for
R-3
+ MAC.APP. 699/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr.J.P.N. Shahi, Advocate
versus
MS NILOFER @ FARZANA & ORS ..... Respondents
Through: Mr. Pranav Kumar Choudhary, Adv. for
R-2
Mr. Rohit Kumar, Adv. for R-3
+ MAC.APP. 703/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
MAC APP. No.698/2014 & connected matters Page 1 of 7
Through: Mr.J.P.N. Shahi, Advocate
versus
SH ISLAM MALIK & ORS ..... Respondents
Through: Mr. Pranav Kumar Choudhary, Adv. for
R-2
+ MAC.APP. 708/2014
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr.J.P.N. Shahi, Advocate
versus
MASTER SAMEER & ORS ..... Respondents
Through: Mr. Pranav Kumar Choudhary, Adv. for
R-2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 22.02.2010, Afzal, Nilofer, Islam Malik and Master Sameer were
travelling in a motor vehicle described as rural transport vehicle bearing
registration no.DL-1VA-0920 (RTV) from Laxmi Nagar to India Gate. At
about 10.15 p.m., the driver of the RTV took a sharp turn towards right side
at the junction of Tilak Marg and Bhagwan Dass Road in a rash speed, as a
result of which the vehicle hit the pavement and overturned, resulting in
such persons receiving injuries, Afzal dying in the consequence. Four
accident claim cases came to be instituted on 01.04.2010 before the Motor
Accident Claims Tribunal (tribunal), they including, first,(suit no.21/11) on
account of death of Afzal, by his parents (he being a bachelor), they now
being first and second respondents (claimants) in MACA 698/2014; besides
second, suit no.17/11, third (suit no.18/11); and the fourth (suit no.19/11), on
account of injuries suffered by Nilofer, Islam Malik and Master Sameer
respectively, they being first respondents in MAC 699/2014, 703/2014 and
708/2014 respectively. In the claim petitions, the appellant insurance
company (insurer) was impleaded as a party respondent, it having
admittedly issued insurance policy against third party risk for the period in
question in respect of the RTV, in addition to the driver and owner of the
said vehicle.
2. The petitions were contested. On the basis of inquiry, the tribunal by
a common judgment, rendered on 07.05.2014, governing all the four claim
cases, returned a finding upholding the case about the injuries having been
suffered on account of the negligent driving of the RTV, with Afzal dying in
the consequence. This finding has attained finality as it was not challenged
further.
3. In the claim petition, on account of death of Afzal, the tribunal
awarded ₹10,07,592/- with interest at the rate of 7.5% p.a. in favour of the
claimants, the same including ₹25,000/- each towards funeral expenses and
loss of love and affection, ₹10,000/-towards loss to estate besides
₹9,47,592/- towards loss of dependency. In the cases of claims on account
of injuries, the tribunal awarded, by the same judgment, amounts of
₹25,149/-, ₹62,298/- and ₹14,098/- respectively in favour of the Nilofer,
Islam Malik and Master Sameer respectively.
4. The insurance company led evidence in respect of its plea that there
was a breach of the terms and conditions of the policy by examining two
witnesses including Rakesh Tiwari (R4W1) and V.D. Talwar (R4W2), the
former an official from the office of licencing authority, Mayur Vihar and
the latter, an Administrative Officer of the insurer. The thrust of the
evidence of the said witnesses essentially is that though the driver of the
offending RTV possessed a driving licence for light motor vehicle, goods
vehicles or non transport vehicle, the same would not hold good for the
offending vehicle which was used as a transport vehicle. The tribunal,
however, was not impressed and thus declined recovery rights referring,
inter alia, to the law laid down in National Insurance Company V. Swaran
Singh (2004) 3 SCC 297.
5. By the appeal (MACA 698/2014) in the case of claim on account of
death of Afzal, the insurance company questions the computation of loss of
dependency on the ground that the income of the deceased was assumed at
the rate of minimum wages of a non matriculate (₹5850) but the tribunal fell
into error by adding the element of future prospects of increase to the extent
of 50% without any basis.
6. 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.
7. 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.
8. In absence of any clear or cogent proof as to the income or
progressive rise therein, the element of future prospects has to be kept out.
Since the deceased was a bachelor, 50% is to be taken out towards personal
and living expenses and having regard to his age, the multiplier of 18 is to
be applied. Thus, the dependency loss is recalculated as (₹5850/2 x 12 x 18)
₹6,31,800/- rounded off to ₹6,32,000/-.
9. It is, however, noted that the non-pecuniary damages awarded by the
tribunal and the rate of interest levied are inadequate. Following the view
taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the award of ₹1 Lakh
towards loss of love and affection and ₹25,000/- each towards funeral
expenses and loss to estate are added. Thus, the compensation in the case of
death of Afzal comes to (₹6,32,000/- + 1,50,000/-) ₹7,82,000/-.
10. The award in above said case is modified accordingly.
11. Following the consistent view taken by this Court, the rate of interest
is increased in each case to 9% per annum from the date of filing of the
petition till realization. [see judgment dated 22.02.2016 in MAC.APP.
165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.].
12. The contention about breach of terms and conditions of the insurance
policy has been duly considered by the tribunal and rejected for sound
reasons. The driver of RTV had held a valid and effective driving licence.
The only fact that it did not bear an endorsement about transport vehicle
would not make a difference. It cannot be said to be a fundamental breach
of the terms and conditions of the insurance policy much less to have
contributed to the cause for accident. Thus, the plea for recovery rights must
be rejected. [see National Insurance Company V. Swaran Singh (2004) 3
SCC 297].
13. By order dated 04.08.2014 in MACA 698/2014, the insurance
company had been directed to deposit the entire awarded amount with
accumulated 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 receipts in UCO Bank, Delhi
High Court Branch, New Delhi to be renewed periodically. The Registrar
General shall now calculate the amount payable to the claimants in the said
case and release the same from out of the deposit thus held by refunding the
excess, if any, to the insurer In case, the amount deposited is found to be
deficient, the insurer shall be obliged to deposit the balance of its liability
with the tribunal within 30 days making it available to be released to the
claimants.
14. Statutory deposits in all the four cases, if made, shall be refunded.
15. The appeals and the pending applications are disposed of in above
terms.
R.K. GAUBA
(JUDGE)
MAY 13, 2016
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