Delhi High Court
Shri Ram General Insurance Co Ltd vs Kanchan & Ors on 27 May, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 368/2015
SHRI RAM GENERAL INSURANCE CO LTD
..... Appellant
Through Mr. Kamal Deep, Adv.
versus
KANCHAN & ORS
..... Respondent
Through Mr. S N Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 14.11.2013, Anil Kumar (23 year old) died as a result of injuries
suffered in a motor vehicular accident involving negligent driving of a truck
bearing registration No.HR74 5880 (offending vehicle) admittedly insured
against third party risk with the appellant insurance company (insurer) for
the period in question. On the claim petition (suit No.162/14) instituted on
28.01.2014 by the dependent family members, first to third respondents
herein (claimants), the tribunal, by judgment dated 10.03.2015, after inquiry,
returned a finding affirming the case about death having occurred due to
negligent driving of the offending vehicle. It proceeded to award
compensation in the sum of `23,52,232/- with interest at 9% per annum
asking the insurer to pay, calculating thus :
Head of compensation Amount (in Rs.)
Loss of dependency 21,17,232/-
Loss of Love and 1,00,000/-
affection
Funeral expenses 25,000/-
Loss of Estate 10,000/-
Loss of Consortium 1,00,000/-
Total 23,52,232/-
2. The insurer is in appeal questioning the element of future prospects of
increase to the extent of 50% in a case where income was calculated
notionally on basis of minimum wages at `9,802/-. Per contra, the counsel
for the claimants submits that the non-pecuniary damages awarded are
inadequate.
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. Since no cogent proof of progressive rise in income was mustered, the
element of future prospects needs to be kept out. The loss of dependency is
calculated afresh without the element of future prospects as (9,802 x 2 ÷ 3 x
12 x 18) `14,11,488/- rounded off to `14,12,000/-.
6. Having regard to the date of accident and death, following the view
taken in MAC.APP.No.160/2015 MAC.APP. 160/2015 Shriram General
Insurance Co Ltd v. Usha decided by this court on 05.05.2016, non-
pecuniary damages in the sum of `1,50,000/- each towards loss of love &
affection and towards loss of consortium and `50,000/- each towards loss of
estate and funeral expense are added. Hence, the total compensation
payable in the case comes to (14,12,000 + 4,00,000) `18,12,000/-. The
award shall carry interest at 9% per annum as levied by the tribunal.
7. It is noted that the tribunal in the impugned judgment had specified
the amounts payable to the dependents/claimants. By order dated
20.04.2015, the insurance company had been directed to deposit 70% of the
awarded amount with proportionate interest within six weeks, which was
allowed to be released to the claimants. Since the compensation has been
reduced, it is directed that the amounts already released in favour of the
second and third respondents shall be treated as their share in the
compensation, the entire balance now payable to go to the first claimant
(Kanchan) alone. The insurance company shall deposit balance of its
liability, if any, with the tribunal within 30 days. Conversely, if excess has
been released, the tribunal shall proceed to recover the same, upon
application being made by the insurer, from the portions held in fixed
deposit.
8. The statutory deposit, if made, shall be refunded.
9. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
VLD
