Delhi High Court
National Insurance Co Ltd vs Sh Bijender Kumar & Ors on 16 May, 2016
$~4 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16th May, 2016
+ MAC.APP. 766/2013
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Ms. Shantha Devi Raman, Adv.
versus
SH BIJENDER KUMAR & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for
respondents/claimants.
AND
+ MAC.APP. 771/2013
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Ms. Shantha Devi Raman, Adv.
versus
SH BIJENDER KUMAR & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for
respondents/claimants
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 27.12.2010, Smt. Munesh and her son Tarun Dedha were moving
on motorcycle bearing registration no.DL-8SAM-7415 (the motorcycle)
driven by the latter. At about 05:15 PM the motorcycle was involved in a
collision with a bus bearing registration no.UP-12C-5421 (bus) statedly
driven in a rash manner, resulting in both, the motorcycle driver and pillion
rider, falling down and sustaining injuries that caused their death. Two
accident claims case were instituted by the dependent family members of the
deceased persons, one (suit no. 64/2011) on account of death of Tarun
Dedha brought by his father and junior siblings and other (suit no.65/2011)
for death of Smt. Munesh brought by her husband and two surviving
children. Both cases were inquired into and resulted in judgments dated
27.05.2013 and 31.05.2013 respectively. In both the cases, the motor
accident claims tribunal (the tribunal) upheld the case of the claimants about
deaths having occurred due to negligent driving of the bus. In the first case,
compensation in the sum of `9,90,036/- was awarded with interest at the rate
of 9% per annum from the date of filing of the petition (27.01.2011) till
realization. In the second case, compensation in the sum of `14,91,816/-
was awarded with interest at the rate of 9% per annum from the date of
filing of the petition (27.01.2011) till realization. In both the cases, the
tribunal found, on the basis of admission, that the bus was insured against
third party risk with the appellant/insurance company (the insurer) which,
thus, was directed to pay the compensation awarded.
2. The insurance company, by its appeal (MAC appeal no.766/2013)
questions the award in the case of death of Tarun Dedha on the ground that
the evidence as to his age was not convincing and further that proper proof
of age of the deceased has been deliberately withheld and there is reason to
suspect that he was not major. It is also the contention of the insurer that the
minimum wages could not have been adopted as bench-mark for assessment
of loss of dependency and further that the addition of future prospects of
increase to the extent of 40% in the said case and multiplier of 18 were
erroneously adopted. Per contra, the counsel for the claimants submits that
the award of `10,000/- under the head of loss of estate is meager.
3. In the other case (MAC Appeal no.771/2013), on account of death of
Smt. Munesh, the insurance company submits that the award is on the higher
side and that there is no reason why the minimum wages of an unskilled
worker should have been adopted.
4. Having heard the learned counsel on both sides and having gone
through the tribunal's record, this court finds no merit in the contention
about age of Tarun Dedha. In the petition, his age was disclosed as 18 and
1/2(half) years. In the oral evidence, it was indicated that he was over 18
years. Undoubtedly, the copy of the ration card on record seems to indicate
that he was born in 1997 but that cannot be treated as a good proof in that
the autopsy report also shows that the age of the deceased boy was found to
be 18 years. In the face of medical opinion about the age and in absence of
any other evidence to the contrary, the findings that the deceased was 18
years does not call for any interference. Since the deceased Tarun Dedha
was major, there is no reason why the minimum wages could not have been
applied in this case for calculating the loss of dependency.
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. In above view, there is no possibility of future prospects to be
factored in. Further, having regard to the age of the claimant/father (37
years) the proper multiplier for calculating the loss of dependency is found
to be 15 years. In these circumstances, loss of dependency is calculated as
(5278/2x12x15) `4,75,020/-, rounded off to `4,76,000/-. The award under
loss of estate is increased to `25,000/-. The total compensation in the case,
thus, comes to (4,76,000+1,50,000) `6,26,000/-. The award in the case of
death of Tarun Ghera is thus modified. Needless to add, it shall carry
interest as levied by the tribunal.
8. It is noted that the tribunal has calculated the compensation in the case
of death of Smt. Munesh abiding by the decision of this court in Royal
Sundaram Alliance Co. Ltd. & etc. vs. Master Manmeet Singh & Ors.,
(2012) ILR 4 Delhi 547 . Therefore, there is no reason why the award in the
said case should be disturbed.
9. By identical orders 23.08.2013 in both the appeals, the insurance
company had been directed to deposit the entire awarded amount with up-to-
date interest with the Registrar General within the period specified and out
of such deposit 60% was allowed to be released to the claimant, the balance
kept in fixed deposit for a period of six months to be renewed periodically.
The award in case of death of Smt. Munesh having been upheld, the balance
lying in deposit shall also now be released to the claimants.
10. The award in the case of death of Tarun Dedha has been reduced.
The Registrar General shall calculate the amounts payable to the claimant
under modified award and release the same from the balance refunding the
excess, if any, to the insurance company.
11. The statutory amount in both the cases, if deposited, shall be
refunded.
12. Both the appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 16, 2016/ssc
