Delhi High Court
New India Assurance Co Ltd vs Rani Kaur & Ors. on 10 August, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th August, 2017
+ MAC.APP. 1129/2013
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Priyadarsi Acharya,
Advocate
Versus
RANI KAUR & ORS. ..... Respondents
Through: Dr. R.S. Sasan, Advocate for
R-1 to R-4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Gurdail Singh @ Raja, then 26 years old, died in a motor
vehicular accident that occurred on 03.09.2016 due to negligent
driving of Tempo Traveller bearing registration No.PB-01-2371,
admittedly insured against third party risk with the appellant insurance
company. His widow and other members of the family dependant on
him, they being first to fourth respondents herein (collectively, the
claimants) brought an accident claim case (Case No.477/2009) on
03.06.2013, seeking compensation under Section 166 of the Motor
Vehicles Act, 1988 impleading, besides the appellant (the insurer), the
driver and owner of the said vehicle as parties.
2. The Motor Accident Claims Tribunal (the tribunal) held inquiry
and, by judgment dated 06.11.2013, upheld the claim on the principle
of fault liability holding the driver (fifth respondent herein) to have
been negligent leading to the fatality.
3. By the impugned judgment, the tribunal awarded compensation
in the total sum of Rs.10,82,412/- in favour of the claimants, this
inclusive of Rs.8,57,412/- calculated as loss of dependency on the
income notionally assessed at Rs.3736/-, it being the minimum wages
of a skilled workman relevant for the period in question, the deceased
being a driver holding a commercial driving licence, being no clear
proof of his actual earnings. The tribunal applied the multiplier of 17,
while calculating the loss of dependency, and added the factor of
future prospects of increase to the extent of fifty per cent (50%), to
which exception is taken by the insurer through the appeal at hand.
4. At the hearing, it is pointed out that the tribunal had later
modified the award by subsequent order dated 13.12.2013 adding
Rs.2,01,132/- which had been incurred as expenditure for medical
treatment of the deceased after the accident and before his death,
thereby raising the award to Rs.12,83,544/-.
5. While fairly conceding to the said addition towards medical
expenditure as another component of the compensation by order dated
13.12.2013, the appeal is pressed only for exclusion of the element of
future prospects in calculation of loss of dependency.
6. 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.
7. 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.
8. Since there is no clear proof of actual earnings, or of
progressive rise in income, the element of future prospects had to be
kept out. After deducting one-fourth towards personal and living
expenses and applying the multiplier of 17, the said component is re-
computed as (3736/- x 3/4 x 12 x 17) Rs.5,71,608/- rounded off to
Rs.5,72,000/-.
9. It is noted that the tribunal made appropriate awards under the
heads of loss of consortium, loss of care and guidance and funeral
expenses, but it did not make any award 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 award of Rs.25,000/- towards loss to estate is added.
10. Putting together all the components of compensation, including
those under the non-pecuniary heads of damages and medical
expenditure, the total compensation is re-computed as (5,72,000/-
+1,00,000/- +1,00,000/- +25,000/- +25,000/- +2,01,132/-)
Rs.10,23,132/-, rounded off to Rs.10,24,000/-. The award is modified
accordingly.
11. Following the consistent view taken by this Court, however, the
rate of interest levied by the tribunal (7.5% p.a.) found to be deficient,
it is increased to 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.].
12. By order dated 10.12.2013, the insurance company had been
directed to deposit the entire awarded amount with interest with the
Registrar General of this court and from out of such deposit, eighty
per cent (80%) was allowed to be released, the balance kept in fixed
deposit receipt with UCO Bank, Delhi High Court Branch. The
registry shall re-calculate the amount payable to the claimants in terms
of the modification ordered above, releasing the balance to the
claimants and refunding the excess, if any, to the insurance company.
Conversely, if there is any deficiency, the insurance company shall
deposit the same with the tribunal within thirty days, making it
available to be released to the claimants.
13. The statutory amount shall be refunded to the appellant
insurance company.
14. The appeal is disposed of in above terms.
R.K.GAUBA, J.
AUGUST 10, 2017
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