Delhi High Court
The New India Assurance Co Ltd vs Sh Ram Avtar Yadav & Ors on 17 May, 2016
$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th May, 2016
+ MAC.APP. 1074/2013
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. J. P. N. Shahi Adv.
versus
SH RAM AVTAR YADAV & ORS ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-1.
AND
+ MAC.APP. 489/2014
SH. RAM AVTAR YADAV & ORS ..... Appellants
Through: Mr. Anshuman Bal, Adv.
versus
THE NEW INDIA ASSURANCE CO. LTD. ..... Respondents
Through: Mr. J. P. N. Shahi, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Santosh, aged 19 years old, son of Ram Avtar Yadav (appellant in
MAC appeal no.489/2014), died in a motor vehicular accident that occurred
on 20.10.2010 involving negligent driving of bus bearing registration
no.DL-1PB-0122 admittedly insured against third party risk with New India
Assurance Co. Ltd. (appellant in MAC appeal no.1074/2013). Ram Avtar
Yadav (the claimant) filed an accident claim case (MAC appeal
no.596/2011) impleading New India Assurance Co. Ltd. (then insurer),
driver and owner of the offending vehicle as respondents, seeking
compensation. The tribunal, by judgment dated 03.10.2013, upheld the case
of death having occurred due to negligent driving of the offending vehicle
which finding has attained finality. It awarded compensation in the sum of
`6,77,526/- with interest at the rate of 7.5% per annum, directing the insurer
to pay. The said amount includes `25,000/- towards loss of love & affection
and funeral expenses and `10,000/- towards loss to estate, besides
`6,17,526/- towards loss of dependency.
2. The tribunal assumed the income of the deceased on the basis of
minimum wages of `5278/- and added component of future prospects to the
extent of 50%, deducted one-half towards personal and living expenses and
applied multiplier of 13, having regard to the age of the claimant.
3. The insurer in appeal questions the addition of the element of future
prospects. Per contra, the claimant in appeal seeking enhanced non-
pecuniary damages and rate of interest.
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. Since the income of the deceased was worked out on the basis of
minimum wages, in absence of any clear proof as to the employment or
progressive rise in income, the loss of dependency has to be calculated
without the element of future prospects. It, thus, is recomputed as
(5278/2x12x13) `4,11,684/-, rounded off to `4,12,000/-.
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 `1,00,000 on account of loss of love & affection
and loss of consortium and `25,000/- each towards loss of estate and funeral
expense are added. Thus, the total compensation payable in the case is
computed as (4,12,000+ 1,50,000) `5,62,000/-.
8. 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.
9. The award is modified accordingly.
10. By order dated 25.11.2013 (in MAC appeal no.1074/2013), the
insurance company had been directed to deposit the entire awarded
compensation with up-to-date interest with the Registrar General and, out of
such deposit, 80% was allowed to be released in favour of the first
respondent, the balance kept in fixed deposit receipt with UCO Bank, Delhi
High Court branch for a period of six months to be renewed periodically.
The Registrar General shall now calculate the amount payable to the
claimants in terms of the award modified as above and release the
balance to them refunding the excess, if any, in deposit with statutory
deposit, if made, to the insurance company.
11. Both the appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 17, 2016
ssc
