Delhi High Court
The Oriental Insurance Company ... vs Smt. Radha Devi & Ors on 17 May, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th May, 2016
+ MAC.APP. 793/2014 with CM no. 14380/2014
THE ORIENTAL INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. R. C. Mahajan, Adv.
versus
SMT. RADHA DEVI & ORS ..... Respondents
Through: Mr. Jatin Sapra, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sanjay, 29 years old, a bachelor working as cleaner-cum-conductor on
a heavy motor vehicle, died in a motor vehicular accident that occurred on
23.12.2009, involving negligent driving of a motor vehicle described as one
bearing registration no.HR-55B-9702 (the offending vehicle), admittedly
insured against third party risk with the appellant/insurance company (the
insurer) for the period in question. His widowed mother (first
respondent/claimant) instituted an accident claim case (suit no.334/2014), on
04.08.2010, seeking compensation under Sections 166 & 140 of the Motor
Vehicles At, 1988 (the MV Act), impleading the insurer, driver and owner
of the offending vehicle as parties. The tribunal upheld the case of the
claimant that death had occurred due to negligent driving of the offending
vehicle which finding has attained finality as it was not challenged any
further. By judgment dated 22.05.2014, it awarded compensation in the sum
of `7,10,500/- with interest at 7.5% per annum in favour of the claimant
directing the insurer to pay. The compensation has been computed as
under:-
Loss of dependency :`6,40,500/-
Love and affection :` 50,000/-
Loss of Estate :` 10,000/-
Funeral expenses :` 10,000/-
Total :`7,10,500/-
2. The insurer, by appeal at hand, raises two points; one, that the
dependency loss has been calculated with an element of 50% future
prospects which was erroneous as the income was notionally assessed on
minimum wages; second the multiplier of 18 was wrongly adopted
according to the age of the deceased rather than the age of the claimant
being mother.
3. 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.
4. 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.
5. Given the fact that the claimant/mother was unable to bring any clear
evidence as to the earnings of the deceased, the element of future income
has to be kept out. It is, however, noted that that the tribunal had adopted
minimum wages of an unskilled worker. Since the deceased was working as
a cleaner-cum-conductor, the minimum wages of semi-skilled worker would
have been the proper bench-mark and, thus, the income of the deceased is
assumed to be `4119/- per month.
6. It is well settled that the multiplier has to be chosen as per the age of
the deceased or that of the claimants whichever is higher [G.M. Kerela
SRTC vs Susamma Thomas (1994) 2 SCC 176; U.P.S.R.T.C. vs Trilok
Chandra (1996) 4 SCC 362]. The tribunal's record includes the copy of
election identity card (page 459 of the tribunal's record) of the
claimant/mother indicating that she was 40 years old as on 01.01.2002. In
this view, her age on the relevant date was in the bracket of 45-50 years.
Thus, the multiplier of 13 will have to be applied.
7. In view of the above, dependency loss is computed as (4119/2x12x13)
`3,21,282/-, rounded off to `3,22,000/-. It is noted that the tribunal has
granted non-pecuniary damages and interest at a rate which is 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 `1,00,000/- towards loss of love & affection and `25,000/- each towards
loss to estate & funeral expenses are added. Thus, the compensation in the
case comes to (3,22,000+1,50,000) `4,72,000/-.
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 02.09.2014, the insurance company had been directed
to deposit the entire awarded amount with accumulated interest with the
Registrar General and out of such deposit 70% was allowed to be released,
the balance kept in fixed deposit receipt with UCO Bank, Delhi High Court
branch for a period of one year to be renewed periodically. The Registrar
General shall now calculate the amount payable to the claimant in terms
of the award modified as above and release the balance to her refunding
the excess in deposit with statutory deposit, if made, to the insurance
company.
11. The appeal (with application) is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 17, 2016
ssc
