Kamla & Anr. vs New India Assurance Co. Ltd. & Ors
2017 Latest Caselaw 4085 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 10th August, 2017
+      MAC APPEAL No.528/2015 & CM No. 14309/2017

       KAMLA & ANR.                               ..... Appellants
                          Through:     Mr. Anshuman Bal, Adv.

                          versus

    NEW INDIA ASSURANCE CO. LTD. & ORS..... Respondents
                  Through: Ms. Seerat Singh, Adv. for R-1.
                           Mr. Manoj Kumar, Adv. for R-
                           3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                      JUDGMENT (ORAL)

1. Badshah Khan, 22 year old, a bachelor, son of the appellants (collectively the claimants) died in motor vehicular accident that occurred on 14.04.2013 due to negligent driving of car no. DL 8CS 2416, admittedly insured against third party risk for the period in question with the first respondent (insurer). The appellants filed accident claim case (suit no. 245/2014), impleading the insurer, owner and driver of the car, the last two being second and third respondents in appeal.

2. After inquiry, the claim petition was decided, by judgment dated 04.04.2015, and the claim for compensation on the principle of fault liability was accepted, such finding having attained finality. The tribunal awarded compensation in the sum of Rs. 7,37,000/- and

fastened the liability on the insurer with interest @ 9% per annum, there being no case made out for breach of terms and conditions of the policy.

3. The appeal at hand by the claimants seeks enhancement. Since liability was fastened against the insurer, the presence and service of other respondents are dispensed with. The claimants press for consideration two contentions, one that the element of future prospects should have been added and the other that the non-pecuniary damages awarded in the sum of Rs. 1 lakh towards loss of love & affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses are deficient.

4. While the second submission must be accepted, the first must be rejected.

5. 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.

6. 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.

7. The claimants were unable to bring home any clear proof as to the nature of avocation, educational or professional qualifications or extent of earnings of the deceased. Therefore, the tribunal was constrained to adopt the minimum wages as the benchmark. The calculation of loss of dependency has been correctly made without the element of future prospects.

8. Following the dispensation by this Court in MAC.APP.No.160/2015 Shriram General Insurance Co Ltd v. Usha decided by this court on 05.05.2016, the accident having occurred in April, 2013, compensation towards loss of love & affection is increased to Rs. 1,50,000/- and compensation towards loss to estate and funeral expenses is modified to Rs. 50,000/- each. This would mean the award needs to be enhanced by Rs. 1,15,000/-. Ordered accordingly. The enhanced portion shall also carry interest @ 9% as levied by the tribunal. The said amount shall be payable to the first

appellant (mother) for it to be released to her in the form of fixed deposit receipt for a period of seven years with right to draw monthly interest.

9. The appeal is disposed of in above terms.

R.K.GAUBA, J.

AUGUST 10, 2017 nk