Delhi High Court
Bajaj Allianz General Insurance ... vs Ramavtar Yadav @ Ramotar Yadav & ... on 17 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 17th August, 2017
+ MAC APPEAL No. 784/2015
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
..... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
RAMAVTAR YADAV @ RAMOTAR YADAV & ORS
..... Respondents
Through: Mr. Rupender Singh, Adv. for
R-1 to R-4 (claimants)
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Mukesh, a bachelor, then 25 years old, working as helper at
construction site at Shivaji Stadium, Delhi, suffered injuries at about
5.25 a.m. on 21.01.2010 on account of negligent driving of motor
vehicle described as excavator bearing no.20085099E/NL13838/M by
the fifth respondent, the said vehicle being registered in the name of
the sixth respondent and insured for the relevant period with the
appellant insurance company, and died in the consequence. His
parents and two minor siblings, they being first to fourth respondents
(collectively, the claimants), instituted accident clam case (MACP
193/2011) on 26.02.2010, which, after inquiry, was allowed by the
tribunal, by judgment dated 23.07.2015, whereby award in the sum of
Rs. 10,26,000/- was granted with interest @ 9% per annum, the
liability being fastened on the appellant insurance company, its plea
about the policy not covering third party risk having been rejected.
2. By the appeal at hand, the insurance company reiterates the plea
that the policy in question (Ex. R3W1/1) did not cover third party risk.
It is noted that the insurance company while tendering the said
document had relied upon certain additional documents incorporating
terms and conditions which were attached to it, which, upon scrutiny,
were found by the tribunal to be relating to some other policy. Since
the terms and conditions which purport to show exclusion of third
party risk related to some other insurance policy, the same cannot be
relied upon. No such terms and conditions relevant to the insurance
policy in question having been proved, the plea cannot be accepted.
3. The insurance company also questions the computation of loss
of dependency pointing out that the tribunal has added the element of
future prospects of increase in income and applied the multiplier of 18
on the basis of age of the deceased.
4. 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.
5. 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.
6. There was no formal proof of any regular employment of the
deceased. In these circumstances, the element of future prospects of
increase could not have been added.
7. In view of the binding precedents of Supreme Court in G.M.
Kerela SRTC vs Susamma Thomas (1994) 2 SCC 176 and
U.P.S.R.T.C. vs Trilok Chandra (1996) 4 SCC 362, as noted by this
Court in National Insurance Company Limited vs. Mohammed
Siddique & Ors., MAC APP.431/2016, decided on 18th July, 2017, it
is the age of the deceased or that of the claimants, whichever is higher,
which form the basis of the multiplier to be adopted. The prime claim
is on behalf of the parents of the deceased. The record of the tribunal
shows copy of the ration card (Ex.PW-1/8) indicating the age of the
mother at the relevant time was 50 years. In this view, the loss of
dependency has to be calculated with the multiplier of 13.
8. Thus, the loss of dependency on the income of Rs.5,500/- as
found by the tribunal is re-calculated, after deduction of 50% towards
personal & living expenses in the sum of [(5,500 ÷ 2) x 12 x 13]
Rs.4,29,000/-.
9. It is noted that the accident had occurred on 21.01.2010. In view
of the dispensation in MAC.APP.No.160/2015 Shriram General
Insurance Co Ltd v. Usha, decided by this court on 05.05.2016, non-
pecuniary damages in the sum of Rs.1,50,000/- towards loss of love &
affection and Rs. 50,000/- each towards loss of estate and funeral
expense are added. Hence, the total compensation payable in the case
comes to (4,29,000/- +1,50,000/- + 50,000/- + 50,000/- ) Rs.
6,79,000/-.
10. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the tribunal.
11. By order dated 14.10.2015, the insurance company had been
directed to deposit the entire awarded amount with interest with the
Registrar General and out of such deposit, fifty per cent (50%) was
allowed to be released, the balance kept in interest bearing fixed
deposit account. The registry shall now release the balance in terms of
the modification ordered above, refunding the excess in deposit with
corresponding interest to the insurance company.
12. The statutory amount shall also be refunded.
R.K.GAUBA, J.
AUGUST 17, 2017
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