Delhi High Court
Md Ismail & Anr vs The Oriental Insurance Company ... on 27 May, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 1002/2015
MD ISMAIL & ANR
..... Appellant
Through Mr. Peeyush Ranjan, Adv.
versus
THE ORIENTAL INSURANCE COMPANY LTD
..... Respondent
Through Mr. A K Soni, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By judgment dated 12.02.2015, the motor accident claims tribunal
(tribunal) decided two claim cases including one (MAC petition No.112/14)
instituted by the appellants on 08.11.2013 for compensation on account of
death of their son Mushahid aged 17 years, in a motor vehicular accident
that occurred on 17.10.2013 involving negligent driving of a motor vehicle
bearing registration No.DL 1LK 0557 (the offending vehicle), admittedly
insured against third party risk with the respondent insurance company
(insurer). By the said judgment, the tribunal awarded Rs.8,62,740/- as
compensation with interest at 9% per annum in favour of the claimants
directing the insurance company to pay. The compensation was awarded
after calculating the loss of dependency on the assumed income of the
deceased at minimum wages and applying the multiplier of 15 to which
other non-pecuniary heads of damages in the nature of loss of love &
affection and loss to estate were added.
2. The claimants are in appeal seeking enhancement of the
compensation. Since the deceased was a child of 17 years of age, the law
settled by this Court in MAC.APP.554/2010, Chetan Malhotra v. Lala Ram
decided on 13.05.2016 applies. The following conclusions in the judgment
in Chetan Malhotra (supra) need to be quoted :
"Subject to all other requisite conditions being fulfilled, for the
foregoing reasons, in order to bring about consistency and uniformity
in approach to the issue, it is held that claims for compensation on
account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the
legislature, or the Central Government notifies the
amendment to the Second Schedule in exercise of the
enabling power vested in it by Section 163-A (3) of the
Motor Vehicles Act, 1988, and except in cases wherein the
prospects of employability and earnings (in future or
present) of the deceased child are proved by cogent and
irrefutable evidence, this having regard, inter alia, to the
academic record or training in special talents or skills, for
computing the pecuniary damages on account of the loss
to estate, the notional income of non-earning persons
(`15000/- p.a.) as specified in the Second Schedule
(brought in force from 14.11.1994), shall be assumed to
be the income of the deceased child, and taken into
account after it is inflation-corrected with the help of Cost
Inflation Index (CII) as notified by the Government of
India from year to year under Section 48 of the Income
Tax Act, 1961, by applying the formula indicated
hereinafter.
(ii) For inflation-correction, the financial year of 1997-
1998 shall be treated as the "base year" and the value of
the notional income relevant to the date of cause of action
shall be computed in the following manner :-
` 15,000/- x A ÷331
[wherein the figure of „`15,000/-‟ represents
the notional income specified in the second
schedule requiring inflation-correction; „A‟
represents the CII for the financial year in
which the cause of action arose (i.e. the
accident / death occurred); and the figure of
„331‟ represents the CII for the „base year‟]
(iii). After arriving at an appropriate figure of the
present equivalent value of the notional income (i.e.
inflation-corrected amount), it shall be rounded off to a
figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall
be reduced to two-third, the deduction to the extent of one-
third being towards personal & living expenses of the
deceased, the balance taken as the annual loss to estate
(hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on
account of the death of children upto the age of 10 years,
the loss to estate shall be calculated, capitalizing the
multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years
upto 15 years, the loss to estate shall be calculated by
applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years
but less than 18 years, the loss to estate shall be
calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked
out in the manner indicated above, an amount equivalent
to the amount thus computed shall be added to it as the
composite non-pecuniary damages taking care of not only
the conventional heads but also towards future prospects
as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately
rounded off, if so required to the nearest (if not next)
thousands of rupees, shall be awarded as compensation
for the death of the child."
3. Since the death had occurred on 17.10.2013, the CII for financial year
2013-14 i.e. 939 applies. The notional income is calculated as (15,000 x 939
x 331) ₹42,552/- rounded off to ₹43,000/-. Since the deceased was 17 year
old, the multiplier of 18 is adopted. In this view, the pecuniary loss to estate
is computed as (43,000 x 2 ÷ 3 x 18) Rs.5,15,999/- rounded off to
Rs.5,16,000/-. Adding similar amount towards composite non-pecuniary
damages, the total compensation in the case comes to (5,16,000 x 2)
Rs.10,32,000/-. The compensation is increased accordingly to
Rs.10,32,000/-. It shall carry interest as levied by the tribunal in the
impugned judgment.
4. The insurer is directed to pay the enhanced award by requisite deposit
with the tribunal within 30 days of this judgment to make it available to be
released to the claimants.
5. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
VLD
