Delhi High Court
Krishna Prem & Ors. vs Shankar Singh & Ors (The Oriental ... on 8 August, 2017
$~13 & 14 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 8th August, 2017
+ MAC.APP. 220/2009 and CM APPL.6399/2009
ORIENTAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.K. Tyagi, Advocate
versus
KRISHNA PREM & ORS. ..... Respondent
Through: Mr. Sumit Gupta, Advocate for
R-1 to R-4.
+ MAC.APP. 28/2017
KRISHNA PREM & ORS ..... Appellants
Through: Mr. Sumit Gupta, Advocate
versus
SHANKAR SINGH & ORS (THE ORIENTAL INSURANCE
CO LTD ) ..... Respondent
Through: Mr. S.K. Tyagi, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Prem Kumar ER, born on 15.05.1965 and employed as
Constable with Delhi Police, was travelling on two-wheeler scooter
bearing registration No. HR-23A-2240 (the scooter) on the night
intervening 5-6.12.2006, with his brother-in-law L.R. Vinod (PW-1).
The scooter met with an accident in the area of over bridge, Brij Vihar
Link Road, Ghaziabad, U.P., on account of collision with Tata 407
No.DL-ILE-3601 (the offending vehicle), it admittedly insured against
third party risk with Oriental Insurance Company Limited, the
appellant in MAC APP.220/2009 (the insurer). As a result of the
collision, Prem Kumar died. His widow and other members of the
family dependent on him (collectively, the claimants), they being
appellants in MAC APP. 28/2017, instituted accident claim case (Suit
No.343/2007) which was decided, after inquiry, by the tribunal, by its
judgment dated 27.01.2009. The claimants' case that the accident had
occurred due to negligence on the part of the driver of the offending
vehicle was accepted and compensation in the sum of Rs.15,55,600/-
was awarded with interest @7% per annum, from the date of filing of
the petition till realization, the liability having been fastened on the
insurer.
2. The insurer, by its appeal, challenges the judgment of the
tribunal submitting that since the accident had occurred on account of
head-on collision between the two vehicles, the element of
contributory negligence should have been factored in. It is also the
submission of the insurer that the tribunal fell into error by adding the
element of future prospects of increase to the extent of 50% and
applying the multiplier of 15 which was incorrect in view of the ruling
in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr.,
(2009) 6 SCC 121.
3. Per contra, the claimants have prayed for enhanced
compensation on the ground that the tribunal had concluded (in para
15) that deduction on the account of personal and living expenses had
to be to the extent of one-fourth (1/4th ) but then erroneously applied
one-third in the calculation. It is further the grievance pressed by the
claimants that the non-pecuniary damages awarded and the rate of
interest levied are inadequate.
4. The contention of the insurer about contributory negligence
must be rejected for the simple reason the accident may have been
described by PW-2 as head-on collision, but it cannot be ignored that
he also stated in the course of deposition that the offending vehicle
had come from the wrong side which was the prime cause for the
collision. Noticeably, the driver of the offending vehicle while
appearing in the witness box as R1W1 denied even the collision which
obviously could not have been accepted in view of the other
corroborating material on record. In these circumstances, the plea of
the insurer for deduction on account of contributory negligence is
rejected.
5. The calculation by the tribunal of loss of dependency is indeed
erroneous in that the element of future prospects of increase could not
have been to the tune of fifty per cent (50%) and multiplier of 15
could not have been invoked. The deceased was more than 41 years
old at the relevant point of time and, therefore, future prospects to the
extent of thirty per cent (30%) and the multiplier of 14 should have
been applied. The last salary drawn was in the sum of Rs.8495/- and,
therefore, the loss of dependency is re-computed, after deduction of
one-fourth towards personal and living expenses, which only would
have been proper, as (8495/- x 130/100 x 3/4 x 12 x 14)
Rs.13,91,481/- rounded off to Rs.13,92,000/-.
6. Having regard to the date of accident (6/12/2006), the
composite award of Rs.12,500/- toward loss of estate and loss of love
and affection, Rs.10,000/- towards loss of consortium and Rs.4,000/-
towards funeral expenses was highly deficient. Following the view
taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Shashikala V. Gangalakshmamma (2015) 9 SCC 150, compensation in
the sum of Rs.1 lakh each on account of loss of love & affection and
loss of consortium and Rs.25,000/- each towards loss of estate and
funeral expenses are added.
7. Thus, the total compensation payable in the case is computed as
(13,92,000/- + 2,50,000) Rs.16,42,000/-. The award is modified
accordingly.
8. Following the consistent view taken by this Court, the rate of
interest is increased to nine per cent (9%) per annum 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.].
9. Having regard to the dispensation made by the tribunal in
faovur of the other claimants, it is directed that the entire enhanced
portion of the award with corresponding interest shall go to the share
of the first claimant Krishna Prem (widow), it to be released to her in
the form of interest bearing fixed deposit receipt, to be taken out in a
nationalized bank for a period of ten years with right to draw monthly
interest.
10. The insurance company shall deposit the enhanced portion with
interest with the tribunal within thirty days, making it available to be
released to the claimants.
11. The statutory amount shall be refunded to the insurance
company.
12. Both the appeals stand disposed of in above terms.
13. Dasti.
R.K.GAUBA, J.
AUGUST 08, 2017
vk
