Delhi High Court
Savitri Devi Pandey And Others vs Mrs. Raj Kumari & Another on 8 August, 2017
$~ 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 08th August, 2017
+ MAC.APP. 195/2009
SAVITRI DEVI PANDEY AND OTHERS ..... Appellants
Through: Mr. Narender Kumar Sharma,
Advocate
versus
MRS. RAJ KUMARI & ANOTHER ..... Respondents
Through: Mr. Vijay Chandra Jha,
Advocate for Ms. Sonia
Sharma, Advocate for R-2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Anil Kumar Pandey, then aged about 40 years, employed on
regular basis as Assistant Time Keeper (Meter Reader) with BSES
Rajdhani Power Limited, suffered injuries in a motor vehicular
accident that occurred on 26.05.1995 and died in the consequence, the
accident having been caused due to negligent driving of a bus bearing
registration no.DL-1P-2285, admittedly insured against third party risk
with the second respondent (insurer) for the period in question. His
widow and two children, both dependent on him, they being the
appellants herein (collectively, the claimants) instituted accident claim
case (suit no.207/08) impleading the driver and the owner of the said
bus with its insurer as respondents, the claim being for compensation
on account of death which was statedly caused due to negligent
driving of the bus. The said claim was upheld by Motor Accident
Claims Tribunal (the tribunal), by judgment dated 03.07.2008, and
compensation in the total sum of Rs.6,20,000/- was awarded with
interest at the rate of 7.5% per annum from the date of filing of the
petition till realization, the liability having been fastened against the
insurer.
2. The insurer had come up in appeal (MACA 519/2008) pressing
for recovery rights on the ground that there was breach of the terms
and conditions of the insurance policy but the said appeal was
dismissed by judgment dated 04.07.2017.
3. The appeal at hand is by the claimants seeking enhancement of
compensation, the grievance essentially being that the last salary
drawn by the deceased at the time of death was not taken into account,
and therefore, the loss of dependency being deficient.
4. There seems to be some error on the part of the tribunal in
properly construing the evidence led through Suman Nanda (PW-3),
the official representing the employer. The said witness had proved
two documents each described as last pay certificate, one being
Ex.PW-3/A which was for the month of April, 1995, the period for
which salary was drawn immediately preceding the month in which
death had occurred and the other being Ex.PW-3/B, which was on the
assumption that the deceased would have continued to live and the
salary which he would have drawn sometime in 2016, his date of
retirement being 30th April, 2013. Obviously, the second method of
calculation (Ex.PW-3/B) could not have been adopted and was rightly
ignored by the tribunal. But then, in calculating the loss of dependency
on the basis of last salary drawn, as represented by document Ex.PW-
3/A, the tribunal fell into error. Instead of taking the last emoluments
as the bench mark and adding the element of future prospects of
increase, which would have been the appropriate method, the tribunal
went into a long winded calculation doubling the different components
and thereafter adding the factor of increase.
5. The total emoluments drawn, per Ex.PW-3/A, in the month
preceding the death were Rs.4870/-. Since the death had occurred at
the age of 40, per the ruling in Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121, the element of
future prospects of increase to the extent of 50% required to be
factored in. This would mean, the notional income on which loss of
dependency has to be calculated would come to (4870/- x 150/100)
Rs.7305/-.
6. The tribunal correctly deducted one-third towards personal and
living expenses but applied the wrong multiplier of 13, the correct
multiplier being 15. The loss of dependency is re-calculated as (7305/-
x 2/3 x 15 x 12) Rs.8,76,600/- rounded off to Rs.8,77,000/-.
7. It is noted that the tribunal awarded composite amount of
Rs.25,000/- towards loss of love and affection and consortium and
Rs.5,000/- towards funeral expenses. Keeping in view the date of
death (26.05.1995), following the dispensation in Madhu Marwaha &
Anr. vs. Dal Chand & Anr., FAO No.102/2001, decided on
01.02.2016, non pecuniary damages in the sum of Rs.50,000/- each
towards loss of love and affection and consortium on one hand and
Rs.10,000/- each towards funeral expenses and loss to estate are
added.
8. Thus, the total compensation comes to (8,77,000/- + 50,000/- +
50,000/- + 10,000/- + 10,000/-) Rs.9,97,000/-.
9. The grievance of the claimants concerning interest relates not
only to the rate but also to the exclusion for the period February, 2001
to July, 2006.
10. It is noted that the claim petition which was filed on 13.07.1995
had resulted in amicable settlement in Lok Adalat with the insurance
company, it culminating in compromise award dated 03.02.1997 in the
total sum of Rs.3 lacs. It appears that on 16.04.1999 the insurance
company indicated to the Member Secretary, Delhi Legal Services
Authority its disinclination to honour to the said award passed in Lok
Adalat on the ground that the driving licence of the driver of the
offending vehicle had been found to be fake. This communication
was in the form of letter dated 17.02.1999 on behalf of National
Insurance Company Limited requesting the Member Secretary, Delhi
Legal Aid and Advisory Board to return the matter to the tribunal "by
cancelling the original order". The record does not seem to contain
any formal action except a noting under the signatures of Member
Secretary, Delhi Legal Services Authority, directing the matter to "be
sent back". No formal proceedings upon such return of the case are
shown to have been recorded by the tribunal in the wake of such
noting of the Member Secretary.
11. On 16.04.2003, an application was made on behalf of the
claimants pointing out that the matter had been settled in Lok Adalat
on 02.03.1997 for payment to be made in the sum of Rs.3 lacs but they
had not received any amount, the file, on inspection, instead having
been found to be consigned to the record room. This application was
registered as Miscellaneous Case (M-17/2003) and notice issued to the
insurance company thereupon by the tribunal on 05.05.2003. The
claimants did not pursue the said application and instead moved an
execution application (Execution No.37-A/2004), on which notices
were issued.
12. Taking note of the above mentioned facts, the tribunal, by its
order dated 22.05.2006, proceeded to revive the proceedings on the
main claim petition and issued directions eventually by order dated
21.08.2006 leading to the impugned judgment being passed.
13. In the facts and circumstances noted above, it was most unfair
and unjust on the part of the tribunal to deny to the claimants the
benefit of interest for the period February, 2001 to July, 2006. If the
driving licence had been found to be fake, the claimants could not
suffer. If the insurance company having settled the matter with the
claimants in Lok Adalat had difficulty in honouring its commitment,
instead of having the proceedings closed denying any relief to the
claimants, it was its prime responsibility to have the proceedings on
the claim petition revived.
14. The directions of the tribunal for exclusion of the period
February, 2001 to July, 2006 for the levy of interest are thus set aside.
It is held that the claimants are entitled to interest from date of filing
the original petition till payment of compensation.
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. For removal of doubts, it is directed that the liability of the
insurance company to pay the interest component shall inure from the
date of filing of the original petition (13.07.1995) till realization.
Needless to add, the amount already paid in terms of the impugned
award shall have to be adjusted.
17. Having regard to the apportionment already made in favour of
second and third appellants, it is directed that the entire enhanced
portion of award including increase on account of enhanced rate of
interst for the entire period mentioned above shall fall to the share of
first appellant Savitri Devi Pandey (widow). It shall be released to her
in the form of interest bearing fixed deposit receipt taken out in a
nationalized bank for a period of seven years.
18. The insurance company is directed to deposit the enhanced
portion of the amount in terms of the modified award with the tribunal
within thirty days, making it available to be released to the claimants.
19. The appeal is disposed of in above terms.
20. Dasti.
R.K.GAUBA, J.
AUGUST 08, 2017
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