Delhi High Court
Bal Kishan Tokas & Anr. vs New India Insurance Co Ltd & Ors on 1 August, 2017
$~R-26 & R-27 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 1st August, 2017
+ MAC.APP. 400/2009
M/S. NEW INDIA INSURANCE CO LTD ..... Appellant
Through: Mr. D.K.Sharma, Advocate
versus
BAL KISHAN TOKAS ..... Respondent
Through: Mr. O.P.Mannie, Advocate
+ MAC.APP. 323/2017
BAL KISHAN TOKAS & ANR. ..... Appellants
Through: Mr. O.P.Mannie, Advocate
versus
NEW INDIA INSURANCE CO LTD & ORS. ..... Respondents
Through: Mr. D.K.Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Pradeep Tokas, 21 years old, a bachelor, son of the appellants in
MAC APP.323/2017 (hereinafter, the claimants) died in a motor
vehicular accident that occurred on 11.05.2004 due to negligent
driving of truck bearing registration no.HR-51-GA-0525, admittedly
insured against third party risk with the New India Insurance
Company Limited (the insurer), appellant in MAC APP.404/2009.
2. The claimants instituted accident claim case (Suit
No.1180/2007) on 18.11.2004 seeking compensation impleading the
driver and insurer of the truck as parties. The tribunal, after inquiry,
by judgment dated 25.05.2009, awarded compensation in the sum of
Rs.14,87,140/- with interest @ 7% per annum directing the insurer to
pay. The insurer filed appeal questioning computation of
compensation.
3. During the pendency of the above said appeal, the claimants
came with cross objections (CM APPL.14161/2009) which have since
been registered as independent appeal (MAC APP.323/2017) whereby
they seek enhancement.
4. The tribunal assessed the compensation thus:-
Sl.No. Head Amount in (Rs.)
1. Towards loss of dependency 14,62,140/-
2. Towards loss to estate and 10,000/-
consortium 10,000/-
3. Towards funeral & other expenses 5,000/-
Total 14,87,140/-
5. In computing the loss of dependency, it accepted the evidence
of the claimants based primarily on the income tax returns (ITRs) of
the claimant mother for the period 2004-2006 for arriving at the
notional income of Rs.10,831/- per month. It, however, added the
component of future prospects of increase to the extent of 50% so as
to assume the income at Rs.16,246/- and after deduction of 50%,
invoked the multiplier of 15 for awarding compensation keeping in
view the age of the claimant mother.
6. The contention of the insurer is that the income of the mother
could not have been treated as the bench mark and that there was no
justification for the element of future prospects of increase to be
added.
7. Per contra, the contention of the claimants in their cross appeal
is that the multiplier should have been chosen according to the age of
the deceased (21 years) and not according to the age of the parents. It
is also the submission of the claimants that awards under the non-
pecuniary heads of damages and the rate of interest are inadequate.
8. It is noted that the claimant mother while deposing in the
inquiry as PW-1 on the strength of her affidavit (Ex.PW-1/A), though
having affirmed, in chief-examination that the deceased was gainfully
engaged in running a swimming pool and gym, conceded during
cross-examination that the swimming pool and gym at Air Force
Station (Central School), Sector 14, Gurgaon, Haryana in the name
and style of Baba Gang Nath Swimming/Gym Centre is run by her, it
being insured in her name. She also admitted that the deceased was
still a student and had no source of income of his own. At the same
time, however, it cannot be ignored that the claimants had also proved,
through certificates (Ex.PW-1/2 to Ex.PW1/10), that the deceased was
a trained swimmer and had been participating in swimming
competitions and winning prizes at the State level events. The
material on record confirms that he had studied upto 12 th standard.
Against this backdrop, while it must be conceded that the deceased
had potential to be an earning hand in future, his income for the
purposes of computing compensation cannot be based on the income
generated by the mother from the business of swimming pool and
gym.
9. But, cue can be taken from the evidence of Jitender Tokas (PW-
3) who was employed in Delhi Public School, R.K.Puram since 2006.
The said witness proved that he was earning Rs.15,000/- per month by
working as a swimming coach. Noticeably, PW-3 is a graduate and
had a diploma in swimming from National Institute of Sports and has
been certified as lifeguard by YMCA, New Delhi. By this reckoning,
the income of the deceased is notionally assessed at Rs.7,500/- per
month.
10. It is not correct to contend that the multiplier for calculating the
loss of dependency is to be calculated in the case of death of a
bachelor on the basis of age of the deceased. The law on the subject
was clearly declared by Supreme Court in General Manager, Kerala
State Road Transport Corporation vs. Susamma Thomas & Ors.,
(1994) 2 SCC 176, U.P.S.R.T.C. vs Trilok Chandra (1996) 4 SCC 362.
This court in National Insurance Company Limited vs. Mohammed
Siddique & Ors., MAC APP.431/2016, decided on 18th July, 2017, has
held as under:
"16. Since the decision in Trilok Chandra and Ors.,
(supra) by a bench of three Hon'ble Judges is prior in time
in relation to the decisions in Reshma Kumari (supra) and
Munna Lal Jain (supra), it is the statement of law on choice
of multiplier in the former which is to be taken as the
binding precedent. Thus, this court will follow the dictum in
the said judgment and adopt the multiplier according to the
age of the deceased or that of the claimants, whichever is
higher."
11. It is the age of the deceased or that of the claimants, whichever
is higher, which is to regulate the choice of the multiplier. In these
circumstances, the approach of the tribunal cannot be faulted.
12. There cannot be addition on account of future prospects of
increase as the deceased was admittedly not working for gain, his
income having been notionally assessed. After deducting 50% of the
notional income towards personal and living expenses, the loss of
dependency is worked out as (7500/- x 50/100 x 12 x 15)
Rs.6,75,000/-.
13. Following the ruling in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala vs. Gangalakshmamma (2015) 9
SCC 150, non-pecuniary heads of damages, however, are increased
and Rs.1,00,000/- each is added towards loss of love and affection
and Rs.25,000/- each towards loss to estate and funeral expenses.
Thus, the total compensation payable is computed as (6,75,000/- +
1,00,000/- + 1,00,000/- + 25,000/- + 25,000/-) Rs.9,25,000/-.
14. The award is modified accordingly.
15. Following the consistent view taken by this Court [see judgment
dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd
v. Sangeeta Devi & Ors.], the rate of interest is increased to 9% per
annum from the date of filing of the petition till realization.
16. In terms of order dated 24.08.2009 passed in MAC
APP.400/2009 the insurance company had deposited the entire
awarded amount with UCO Bank, Delhi High Court Branch, and out
of the said deposited amount, Rs.1 lac each was released to the two
claimants, the balance kept in fixed deposit receipt with liberty to
draw monthly interest. The registry shall calculate the amount
payable in terms of the modified award as above and release the
balance from out of the remaining amount kept in fixed deposit,
refunding the excess amount to the insurance company along with
statutory amount
17. Both the appeals are disposed of in above terms.
18. The statutory amount shall be refunded to the insurance
company.
R.K.GAUBA, J.
AUGUST 01, 2017
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