Delhi High Court
The New India Assurance Co Ltd vs Ashok Kumar & Ors on 27 May, 2016
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 482/2015 and CM No.10827/2015
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Heshari Kr. Tiwari, Advocate
versus
ASHOK KUMAR & ORS ..... Respondents
Through: Ms. Surbhi Rai, Adv. for R-1 & 2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Yogender, then aged 20 years, a student of Polytechnic Institute
pursuing a diploma course in mechanical branch, suffered injuries and
consequently died, in a motor vehicular accident that occurred on
11.11.2012 involving negligent driving of a bus bearing registration no.HR-
63-6114 (offending vehicle) of Haryana Roadways, concededly insured
against third party risk with the appellant insurance company (insurer) for
the period in question. His parents, first and second respondents (claimants)
instituted an accident claim case (no.737/2014) on 13.12.2012 seeking
compensation.
2. The tribunal held inquiry and, by judgment dated 31.03.2015, upheld
the case of death having occurred due to negligent driving of the offending
vehicle. The said finding has since attained finality. By the same judgment,
the tribunal awarded compensation in the sum of Rs.15,62,868/- with
interest at the rate of 8% p.a. from the date of filing of the petition till
realization.
3. The insurer, which has been burdened with the liability to pay has
come up in appeal, questioning the calculation of loss of dependency. Its
submission is that in absence of any proper proof of prospective income of
the deceased, still undergoing training for gainful employment in future, the
minimum wages of a unskilled worker was adopted and yet the minimum
wages of a matriculate was chosen. The said contention must be rejected as
the evidence on record clearly brings home the fact that the deceased was a
matriculate.
4. The insurer, however, also questions the addition of future prospects
of increase and the multiplier of 18 being applied.
5. 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.
6. 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.
7. Since there was no clear proof as to earnings, the addition of future
prospects has to be removed. It is well settled that the multiplier has to be
chosen according to the age of the claimants or that of the deceased
whichever is higher. [ see G.M. Kerela SRTC vs Susamma Thomas (1994) 2
SCC 176; U.P.S.R.T.C. vs Trilok Chandra (1996) 4 SCC 362; and New
India Assurance Co. Ltd. Vs. Smt. Shanti Pathak and Ors., AIR 2007 SCC
2649].
8. As per the copy of the driving licence (Ex. PW1/4) of the first
claimant (father) on record, he was born on 01.01.1972. It appears that no
inquiry was made nor any material submitted before the tribunal to bring
home the age of the mother. It has to be assumed that she would be a few
years younger than the father of the deceased. Since the accident had
occurred on 11.11.2012, the age of the father was about 40 years, on the
assumption that the age of the mother would be a few years less, the
multiplier of 15 will have to be applied. Thus, the dependency loss is
recalculated as (Rs.8814 / 2 x 12 x 15) Rs.7,93,260/- rounded off to
Rs.7,94,000/-.
9. It is noted that the tribunal that the tribunal has awarded only
Rs.10,000/- towards loss to estate. Following the view taken in Rajesh &
Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, the said amount is increased to
Rs.25,000/-.
10. Adding the amount of Rs.1 Lakh towards loss of love and affection
and Rs.25,000/- towards funeral charges, the total compensation in the sum
is computed as (Rs.7,94,000/- + Rs.1,50,000/-) Rs.9,44,000/-
11. Following the consistent view taken by this court, the rate of interest
is increased to 9% p.a. 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.].
12. The award is modified accordingly.
13. By order dated 29.05.2015, the insurance company had been directed
to deposit 60% of the awarded amount with proportionate interest from
which `1 Lakh each was released to the two claimants. The Registrar
General shall now recalculate the amount payable to the claimants in terms
of the modified award and release the balance from the amount retained in
deposit refunding excess, if any, to the insurer with statutory deposit, if
made. Conversely, if any amount payable as compensation remains
outstanding, the insurer will be obliged to deposit the same with the tribunal
within 30 days of this judgment, making it available to be released to the
claimants.
14. The appeal and the pending application are disposed of in above
terms.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
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