Delhi High Court
Kamlesh Pal & Ors. vs Ajay Aggarwal & Ors. on 12 December, 2017
$~R-696 & 697
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th December, 2017
+ MAC APPEAL 1290/2012 and CM 21086/2012
ORIENTAL INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. Pradeep Gaur, Advocate
versus
KAMLESH PAL AND ORS. ..... Respondents
Through: Mr. O.P. Mannie, Advocate for
R-1 to R-3.
+ MAC APPEAL 391/2013
KAMLESH PAL & ORS. ..... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
AJAY AGGARWAL & ORS. ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Gaj Ram, then over 51 years of age, employed as baildar with
New Delhi Municipal Council (NDMC), suffered injuries in a motor
vehicular accident that had occurred on 10.07.2011 due to negligent
driving of motor vehicle described as Wagon-R car, bearing
registration No.DL-9CP-1737 and died in the consequence. Accident
claim case (MACT No.11/11) was instituted on 22.10.2011 by his
wife and two other members of the family dependent upon him
(collectively, the claimants) seeking compensation under Sections 166
and 140 of the Motor Vehicles Act, 1988. The Tribunal, after inquiry,
by judgment dated 29.09.2012, upheld the said case and awarded
Rs.30,58,884/- as compensation fastening the liability to pay with
interest @ 9% per annum on Oriental Insurance Company Limited
(insurer) , it admittedly having issued insurance policy covering third
party risk in respect of the vehicle in question.
2. The insurer by its appeal (MAC APP.1290/2012) questioned the
award on the ground the loss of dependency in the sum of
Rs.29,38,884/- has been wrongly calculated by inclusion of future
prospects to the extent of 30%. Exception is also taken to the non-
pecuniary damages which have been included in the award in the sum
of Rs.1,00,000/- for loss of love and affection and Rs.10,000/- each for
loss to estate and cremation charges.
3. Per contra, the claimants by their appeal (MAC APP.391/2013)
argue that the tribunal fell into error by deducting certain allowances
from the last salary drawn, this rendering the award inadequate.
4. The contention of the claimants in their appeal respecting the
salary is found to be correct. Last salary slip (Ex.PW-1/3) reveals
total emoluments to be in the sum of Rs.31,152/-. There is no good
reason to deduct the allowances reflected in the said salary slip. All
such allowances were regular in nature and part of service conditions
of the deceased with New Delhi Municipal Council and would, thus,
result in corresponding savings. The gross annual income, thus, was
(31151/- x 12) Rs.3,73,824/-.
5. Having regard to the rate of income tax during the financial year
2011-2012, there would be a liability of income tax to the extent of
Rs.10,000/-.
6. Given the age of the deceased at the time of the cause of action,
following the ruling of the 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 future prospects will
have to be restricted to 15%. Thus, after deducting one-third towards
personal and living expenses and applying the multiplier of 11, the
loss of dependency is re-computed as (3,73,824/- (-) 10,000/- x
115/100 x 2/3 x 11) Rs.30,68,249/- rounded off to Rs.30,69,000/-.
7. The non pecuniary awards also require to be brought in sync
with dispensation in Pranay Sethi (supra). Thus, in lieu of amounts
added by the tribunal Rs.40,000/- towards loss of consortium and
Rs.15,000/- each for loss to estate and funeral expenses are added. The
total compensation payable in the case is, thus, calculated as
(30,69,000/- + 40,000/- + 15,000/- + 15,000/-) Rs.31,39,000/- (Rupees
Thirty One Lacs Thirty Nine Thousand Only).
8. The award is modified accordingly. It shall carry interest as
levied by the tribunal.
9. The apportionment of the award as directed by the tribunal shall
be followed.
10. By order dated 18.12.2012 (on the file of MAC
APP.1290/2012), the insurance company was directed to deposit 75%
of the awarded amount with proportionate interest with the tribunal as
a pre-condition to the stay of execution. The amount, thus, deposited
was permitted to be released in the form of fixed deposit in favour of
the claimants.
11. The insurance company will be obliged to satisfy the balance of
its liability under the modified award by requisite deposit with the
tribunal within thirty days, making it available to be released to the
claimants.
12. The statutory amount deposited by the insurer will be refunded.
13. Both the appeals and the pending application are disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 12, 2017
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