Delhi High Court
Bajaj Allianz General Insurance ... vs Tafijul Ali And Ors on 18 May, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.05.2016
+ MAC.APP. 1022/2013 and CM No.17774/2013 and 15222/2014
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
TAFIJUL ALI AND ORS ..... Respondents
Through: Mr.Saurabh Kansal and Ms. Pallavi S.
Kansal, Advocates for R-4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 03.04.2010, Amjad was on duty as a helper on a motor vehicle
described as crane bearing registration no.HR-74-0926, and suffered injuries
as a result of negligent driving thereof by the fourth respondent. The
deceased was aged 21 and half years old and still a bachelor. His parents
and sister, dependents, first to third respondents (claimants), instituted an
accident claim case (petition no.156F/10) on 20.04.2010 seeking
compensation under Sections 166 and 140 of the Motor Vehicles Act, 1988
(M.V. Act). In the said proceedings, besides the driver (fourth respondent),
the registered owner of the motor vehicle (fifth respondent) and the insurer
(appellant) insurance company were impleaded as parties.
2. The tribunal held inquiry and, by judgment dated 05.06.2013, upheld
the case of death having occurred due to negligent driving of the said
vehicle. This finding has attained finality as it was not challenged further.
By the impugned judgment, the tribunal awarded compensation in the sum
of ₹7,62,530/- with interest at the rate of 7.5% p.a. calculating it thus :
Loss of dependency ₹7,12,530/-
Loss of Love and affection at ₹30,000/-
₹10,000/- to each petitioners
Loss of Estate ₹10,000/-
Funeral expenses diet ₹10,000/-
₹7,62,530/-
3. The insurance company had pleaded before the Tribunal that there
was no liability to pay. Though it conceded that the insurance policy had
been issued (Ex. R3W1/1) in respect of the said vehicle covering the period
of accident, it referred to a clause ["legal liability (liability under contract
excepted) for fatal or non fatal injury to any persons other than the
insured's own employees or workmen or employees of the owner of the
works or premises or other firm connected with any other construction work
thereon, or members of the insured's family or of any other aforesaid,
directly consequent upon or solely due to the construction of any property
described in the Schedule"], pleading that the policy had not been issued in
accordance with the provisions contemplated in Section 147 of the M.V.
Act. The tribunal, however, rejected the said contention of the insurance
company and directed it to pay.
4. By the appeal at hand, the insurer not only reiterates that it was not
liable to indemnify in view of the aforementioned clause in the insurance
policy, but also questions the calculation of dependency on the ground
future prospects were wrongly added.
5. It is found that the claimants had not been able to prove by any cogent
evidence the income of the deceased. The tribunal, thus, was constrained to
assume the income on the basis of minimum wages (i.e. 5278). It, however,
proceeded to compute the loss of dependency by adding 50% towards future
prospects.
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. Since there was no clear evidence as to the income or progressive rise
therein, the dependency loss has to be calculated without any such addition
of future prospects. As the deceased was a bachelor, 50% is deducted
towards personal and living expenses. Having regard to the age of the
mother, the tribunal had chosen the multiplier of 15, which is not
questioned. Thus, the loss of dependency is calculated as (₹5278 / 2 x 12 x
15) ₹4,75,020/- ₹ 4,76,000/-.
9. It is noted that the award under the non-pecuniary heads of damages 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, award of ₹1 Lakh is granted towards loss of love and affection and
₹25,000/- each are added towards funeral expenses and loss of estate. Thus,
the total compensation payable to the claimants comes to (₹4,76,000/- +
₹1,50,000/-) ₹6,26,000/-.
10. Following the consistent view taken by this Court, the rate of interest
is increased 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.].
11. The award in favour of the claimants is modified accordingly.
12. Coming to the contention of the insurer as to it not being liable, all
that needs to be said is that the insurance policy cannot be construed against
the provision contained in first clause of proviso to Section 147(1). In
absence of any proof about unlimited cover having been taken out, the
deceased being an employee deployed on the motor vehicle, the liability of
the insurance company is to be restricted to what would be the amount of
compensation calculated under the Workmen' Compensation Act, 1923 now
known as Employees' Compensation Act, 1923. The counsel for the
appellant as well as fourth respondent jointly submitted that the amount of
compensation calculated in accordance with Section 4 of the Employees
Compensation Act, 1923 comes to ₹5,89,195/-. Thus, it is held that the
liability of the appellant insurance company shall be restricted to pay the
amount of ₹5,89,195/- with proportionate interest.
13. Though the insurance company shall be liable to pay the entire
awarded amount to the claimants, as modified above, it shall have the liberty
to recover the payment made in excess of its liability under the Employees'
Compensation Act, 1923 from the owner of the vehicle.
14. By order dated 11.11.2013, the insurance company had been directed
to deposit the entire awarded amount with upto date interest with the
Registrar General of this court, from which 80% was allowed to be released,
the balance kept in fixed deposit receipts with the UCO Bank, Delhi High
Court Branch, New Delhi for a period of six months, to be renewed
periodically. The Registrar General shall calculate the amount payable to
the claimants in terms of the modified award and release the balance
refunding excess, if any, to the insurance company. If there is a short fall,
the insurance company shall deposit the balance of its liability by requisite
deposit with the tribunal within 30 days so that it can be released forthwith.
15. Statutory deposit, if made, shall be refunded.
16. The appeal and the pending applications are disposed of in above
terms.
(R.K. GAUBA)
JUDGE
MAY 18, 2016
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