Delhi High Court
Oriental Insurance Co Ltd vs Sh Ashok Kumar & Ors on 19 May, 2016
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19.05.2016
+ MAC.APP. 75/2014
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Amit Gaur and Mr. Pradeep Gaur,
Advocates
Versus
SH ASHOK KUMAR & ORS ..... Respondents
Through: Mr. S.N. Parashar and Ms. Swati
Sharma, Advocates for R-1 & 2
+ MAC.APP. 482/2014
ASHOK KUMAR & ORS ..... Appellants
Through: Mr. B.S. Randhawa, Advocate
Versus
ORIENTAL INSURANCE CO. LTD. ..... Respondent
Through: Mr. Amit Gaur and Mr. Pradeep Gaur,
Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 03.06.2011, Raj Kumar, aged 28 years, serving in Indian Air
Force in the rank of Corporal Trade Met. Assistant getting salary and
allowances of Rs.24,623/- p.m. (Ex. PW1/B) was riding on the pillion of a
motor cycle bearing registration no.DL-10S-1264 (motor cycle) driven by
the third respondent (driver-cum-owner). The motor cycle statedly met with
an accident at Shahjahan Road, New Delhi and as a result of the injuries
suffered, Raj Kumar died. His parents, first and second respondent
(claimants) instituted an accident claim case (suit no.676/11) on 27.08.2011
seeking compensation impleading the driver-cum-owner of the offending
vehicle and the appellant insurance company (insurer) as respondents, the
latter having admittedly issued an insurance policy against third party risk
for the period in question respecting the said vehicle.
2. The tribunal held inquiry and by judgment dated 07.11.2013, upheld
the case of the claimants about death having occurred due to negligent
driving of the offending vehicle by the third respondent. It awarded
compensation in the sum of Rs.21,13,920/- with interest at the rate of 7.5%
p.a. in favour of the claimants calculating it thus :
Loss of dependency ₹20,53,920/-
Funeral Expenses ₹25,000/-
Loss of Estate ₹10,000/-
Loss of Love and affection ₹25,000/-
Total ₹21,13,920/-
3. The insurer which has been burdened with the liability to satisfy the
award is in appeal (MACA 75/14) submitting that there was a breach of the
terms and conditions of the policy as the third respondent (insured) was
driving the motor cycle under the influence of alcohol.
4. Per contra, the claimants by their appeal (MACA 482/14) submit that
the award granted is inadequate. They pointed out that the income of the
deceased as shown by the salary certificate (Ex. PW1/B) was not accepted
and certain deductions made on the reasoning that these were allowances
payable as compensation for attending duties and could not be treated as part
of the salary which, in the submission of the claimants, is erroneous. The
claimants also argue that the tribunal wrongly adopted the multiplier of 11
on the basis of the age of the claimant mother. It is their submission that the
age of the deceased (28 years) should have regulated the choice of
multiplier. The claimants are also aggrieved with the award under the non
pecuniary heads of damages and the rate of interest.
5. The submission of the claimants about improper calculation of the
salary and allowances must be accepted. The allowances which have been
kept out as reflected by salary certificate (Ex. PW1/B) cannot be said to be
compensation for attending duties. They are all allowances which were part
of the terms of engagement of the deceased in the service of the Air Force
and would be his regular income and, therefore, the computation of loss of
dependency had to be made on the basis of income of Rs.24,623/- p.m.
6. Having regard to the fact that the deceased was in regular
Government service, keeping in view his age and the prospective rise that he
would be earning in income, future prospects to the extent of 50% have to be
added and, at the same time, deduction to be made to the extent of 50%
towards personal and living expenses.
7. The argument of the claimants, however, with regard to the choice of
multiplier cannot be accepted. It is well settled that the multiplier has to be
picked up as per the age of the deceased or that of the claimant 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]
8. Thus, the loss of dependency is recomputed as (₹24,623/2 x 150/100
x 12 x 11) ₹24,37,677/-, rounded off to ₹24,38,000/-.
9. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
the non-pecuniary damages in the sum of ₹1 Lakh towards loss of love and
affection and ₹25,000/- each for funeral expenses and loss to estate are
added. Thus, the total compensation in the case comes to (₹24,38,000/- +
₹1,50,000) ₹25,88,000/-.
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 is modified accordingly. It shall be apportioned in the
manner directed by the tribunal.
12. The tribunal was not impressed with the plea about breach of terms
and conditions of the insurance policy on the ground that the insurer did not
lead any evidence to prove that the driver-cum-owner of the offending
vehicle was under the influence of alcohol. Mere indication of this to be a
possibility in the copy of the charge sheet on record cannot suffice. The fact
had to be proved by positive evidence, and no effort having been undertaken
in this regard, the plea must be rejected.
13. By order dated 24.01.2014, 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
in favour of the claimants, the balance kept in fixed deposit with the UCO
Bank, Delhi High Court Branch, New Delhi. The Registrar General shall
release the balance as well to the claimants. The insurance company shall
pay the enhanced portion of the award including on account of interest by
requisite deposit with the tribunal within 30 days making it available to be
released to the claimants.
14. Statutory deposit, if made, by the insurer, shall be refunded.
15. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
May 19, 2016
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