Delhi High Court
Kiran Kumari & Ors. vs Lalit Kumar & Anr. on 1 December, 2017
$~R-618 & R-619 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 01st December, 2017
+ MAC APPEAL 1089/2012
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LIMITED ... Appellant
Through: Nemo.
versus
KIRAN KUMARI & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Advocate
+ MAC APPEAL 1252/2012
KIRAN KUMARI & ORS. ... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
LALIT KUMAR & ANR. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Kishan Kumar, aged 31 years, suffered injuries in a motor
vehicular accident that had occurred on 22.09.2008, due to negligent
driving of motor vehicle described as Rural Transport Vehicle (RTV)
bearing registration No.DL-1V-6972 and died in the consequence.
His wife and four other members of the family dependent upon him
(collectively, the claimants) instituted accident claim case (Suit
No.370/2008) on 21.11.2008. Lalit Kumar, driver-cum-owner of RTV
and Bajaj Allianze General Insurance Company Limited (insurer)
were impleaded as respondents in the said case.
2. The tribunal held inquiry and, by judgment dated 30.07.2012,
awarded compensation in the total sum of Rs.26,37,000/- fastening the
liability to pay on the insurer.
3. The insurance company had raised a defence that it could not be
called upon to indemnify as there was no permit taken out in respect
of the RTV for the period in question. This plea was repelled by the
tribunal.
4. The insurer filed appeal (MAC APP.1089/2012) pressing it only
to seek recovery rights. In this view, by order dated 12.10.2012 in the
said matter, notice was issued only on the limited point, the directions
being to the insurer to satisfy the award by requisite deposit with the
tribunal in favour of the claimants.
5. The claimants, on the other hand, have also come up with
appeal (MAC APP.1252/2012) submitting that the award is deficient,
pointing out in this context that while calculating loss of dependency,
future prospects have been added only to the extent of 20%, the
grievance also concerning the non-pecuniary heads of damages and
the rate of interest.
6. These appeals were put in the list of 'Regulars' by orders dated
24.02.2016. When they are taken up for hearing, there is no
appearance on behalf of the insurer.
7. On perusal, it is found that the tribunal repelled the plea of
breach on the ground that the RTV was not on the road for any
commercial purpose at the relevant point of time. In these
circumstances, the appeal of the insurance company is liable to be
dismissed.
8. In view of ruling of a Constitution Bench of the Supreme Court
rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance
Company Ltd. Vs. Pranay Sethi and Ors., the element of future
prospects of increase to the extent of 50% deserves to be added in the
calculation, it having been proved that the deceased was in regular
employment at a salary of Rs.15,000/- per month. Thus, the loss of
dependency is re-computed as (15,000/- x 150/100 x 3/4 x 12 x 16)
Rs.32,40,000/-.
9. The award under the non-pecuniary heads of damages also have
to be brought in sync with dispensation in Pranay Sethi (supra) and
thus in lieu of the non-pecuniary damages awarded by the tribunal,
Rs.40,000/- towards loss of consortium and Rs.15,000/- each towards
loss of estate and funeral expenses are added.
10. The total compensation is computed as (32,40,000/- + 40,000/-
+ 15,000/- + 15,000/-) Rs.33,10,000/- (Rupees Thirty Three Lacs and
Ten Thousand Only).
11. 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.].
12. The award is modified accordingly.
13. It is directed that the entire enhanced portion of the award
including the corresponding effect of increase in the rate of interest
shall fall to the share of first claimant (Kiran Kumari) widow, it to be
released to her in the form of fixed deposit receipt taken out from a
nationalized bank for a period of ten years with right to draw periodic
interest.
14. The statutory deposit made by the insurer stands forfeited in
favour of Delhi High Court Legal Services Committee in view of lack
of assistance by it at the hearing.
15. Both the appeals stand disposed of accordingly.
R.K.GAUBA, J.
DECEMBER 01, 2017
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