Delhi High Court
Bajaj Allianz General Insurance ... vs Baljinder Kaur @ Baljit Kaur & Ors. on 5 December, 2017
$~R-641 & 642
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 05th December, 2017
+ MAC APPEAL 1147/2012 and CM 18535/2012
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD. ..... Appellant
Through: Ms. Suman Bagga and Ms.
Anjali Chawla, Advocates
versus
BALJINDER KAUR @ BALJIT KAUR
& ORS. ..... Respondents
Through: None
+ MAC APPEAL 197/2016
BALJINDER KAUR @ BALJIT KAUR
& ORS. ..... Appellants
Through: None
Versus
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD. & ORS. ..... Respondents
Through: Ms. Suman Bagga and Ms.
Anjali Chawla, Advocates for
R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Surjit Singh was travelling in a Maruti Van bearing registration
no.DL-3CZ-1437 (van), driven by Sumit Kumar (driver), a respondent
in these appeals on 08.07.2003, the van carrying several other persons.
It came to be involved in a collision at about 02.00 hours with a truck
bearing registration no.UP-30A-0768 (truck). As a result, Surjit Singh
suffered injuries which proved fatal. The accident claim case (MACT
suit no. 251/04) was instituted on 20.08.2004 by his wife and three
other members of the family (collectively, the claimants) dependent on
him.
2. The case was put to inquiry and decided by judgment dated
27.07.2012 whereby the said driver was held responsible for the
collision. The van was admittedly insured against third party risk for
the period in question with Bajaj Allianz General Insurance Company
Ltd. (insurer).
3. The Motor Accident Claims Tribunal (Tribunal) awarded
compensation in the total sum of Rs.5,27,000/- and directed the
insurer to pay with interest at the rate of 7.5% p.a. The said amount
included Rs.4,74,912/- as loss of dependency besides Rs.25,000/- for
loss of love and affection, Rs.10,000/- for loss of consortium,
Rs.10,000/- for loss to estate and Rs.7,000/- for funeral expenses.
4. The insurer, by its appeal (MACA 1147/2012), questions the
said award on the ground that the evidence of Chattar Pal (PW-3),
presented as an eye witness, has been wrongly believed and that there
was no proof of negligence on the part of the van driver, the
responsibility being of the truck driver who had suddenly stopped the
vehicle coming in the path of the van. The insurer also questions the
calculation of loss of dependency submitting that, in her evidence, the
widow (PW-1) had described the deceased to be aged 37 years old and
therefore, the choice of multiplier is inappropriate.
5. The claimants had come with cross-objections (CM
13589/2015) which were directed to be registered as an independent
appeal by order dated 09.02.2016. The cross-appeal (MACA
197/2016) sought enhanced compensation. Both the appeals were put
in the list of 'Regulars' as per order dated 09.022016. When they are
called out for hearing, there is no appearance on behalf of the
claimants. The learned counsel for the insurer has been heard and
with her assistance the record perused.
6. The plea on the issue of negligence must be rejected. There is
no reason why the evidence of PW-3 should be disbelieved. He was a
passenger in the van at the time of the accident. He has explained the
sequence of events leading to the collision. Even if it were to be
assumed that the truck driver was also responsible to an extent he
having suddenly brought his vehicle to a halt, it would at the most a
case of composite negligence. The choice of the claimants to initiate
action against either of the vehicles cannot be defeated, there being no
effort made during the course of inquiry by the insurer of the van to
have the driver, owner or insurer of the truck also joined as party
respondents.
7. The plea about the age of the deceased also must be rejected.
The tribunal has noted that the Voter I card of the deceased (Ex.
PW1/4) would reveal the age of the deceased as on 01.01.2002 to be
27 years. In these circumstances, there is no case made out for any
interference with the choice of multiplier.
8. It is noted that the claimants had not proved by any clear
evidence the actual earnings of the deceased. The vague plea in their
appeal that he was earning more than Rs.9,000/- p.m. is not supported
by any evidence. In these circumstances, the reliance on the minimum
wages of skilled worker (Rs.3,104/-) as taken into account by the
tribunal is correct. However, following the 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 in income to the
extent of 40% would deserve to be added. Thus, the loss of
dependency is re-computed as [Rs.3,104/- x 140/100 x 3/4 x 12 x 17]
Rs.6,64,876.80, rounded off to Rs.6,65,000/-.
9. Following the dispensation in Pranay Sethi (supra), in lieu of
the non-pecuniary damages awarded by the tribunal, Rs.40,000/-
towards loss of consortium and Rs.15,000/- each for loss to estate and
funeral expenses are added. Thus, the total compensation is computed
as [Rs.6,65,000/- + Rs.40,000/- + Rs.15,000/- + Rs.15,000/-]
Rs.7,35,000/- (Rupees Seven lakh and thirty five thousand only).
10. The award is modified accordingly.
11. Following the consistent view taken by this court, the rate of
interest 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. It is directed that the entire enhanced portion of the award will
fall to the share of Baljinder Kaur @ Baljit Kaur (widow) only, it to be
released to her in the form of an interest bearing fixed deposit receipt
taken out from a nationalized bank for a period of ten years with right
to draw periodic interest.
13. By order dated 02.11.2012 on MACA 1147/2012, it was
informed that the entire awarded amount was deposited with the
tribunal. In this view, execution of the award was stayed. The amount
thus deposited will now be released to the claimants in terms of the
judgment of the tribunal. The enhanced portion of the award with
corresponding interest will be deposited by the insurer with the
tribunal within 30 days making it available to be released to the
claimant.
14. The statutory amount shall be refunded after proof of award
having been satisfied is shown.
15. Both appeals and the pending application are disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 05, 2017
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