Delhi High Court
Bajaj Allianz General Insurance ... vs Saroj Devi & Ors. on 7 July, 2017
$~27 & 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 7th July, 2017
+ MAC APPEAL 490/2015
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD
..... Appellant
Through: None.
versus
SAROJ DEVI & ORS. ..... Respondents
Through: Mr. Pratap Singh, Adv. for R-1
to 5.
Mr. K.P. Mavi, Adv. for ESIC.
+ MAC APPEAL 785/2016
SAROJ DEVI & ORS. ..... Appellants
Through: Mr. Pratap Singh, Adv.
versus
BAL BHAGWAN & ORS. ..... Respondents
Through: Mr. K.P. Mavi, Adv. for ESIC.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Jaibir Singh, employed as a driver in a private company Capital
Vehicle Sales Ltd. in MG Toyota, died in a motor vehicular accident
that occurred on 12.07.2011. An accident claims case was instituted
by his widow and other members of the dependent family (MACP No.
350/2011/2014), impleading besides the driver and owner of the
offending vehicle (HR 55D 0012), its insurer Bajaj Alliance Life
Insurance Company Ltd. (insurer) as respondents. The tribunal, by
judgment dated 30.03.2015, upheld the case of the claimants that the
accident had occurred due to negligent driving of the said vehicle.
Thus, the insurer was held liable to indemnify, the owner of the
vehicle being vicariously liable. The tribunal granted compensation in
the sum of Rs. 19,77,592/- with interest calling upon the insurer to
pay.
2. The insurer instituted appeal (MAC Appeal No. 490/2015)
which is pressed only on the contention that the deceased was a
member of an insurance scheme under Employees State Insurance
Act, 1948, and consequently, his legal heirs have been receiving
benefits from Employees State Insurance Corporation (ESIC) and that
there cannot be a total doule benefit gained. The claimants have come
up with their appeal (MAC Appeal No. 785/2016), raising the
contention that the dependency loss has been inadequately worked out
since the tribunal assumed the income to be Rs.6,725/- per month
only, ignoring the fact that the deceased was also entitled to certain
other allowances they being Rs.770/- per month under the head of pick
and drop and Rs.1400/- described simply as incentive, as brought out
through the evidence of PW-3, accountant of the employer.
3. The contentions raised by the insurer concerning the benefits
drawn under the Employees State Insurance Act, 1948 were noticed
and court notice was issued to ESIC by order dated 9.8.2016 in MAC
Appeal No. 490/2015. In terms of the directions given, eventually
ESIC submitted affidavit of its Social Security Officer which came on
record on 6.1.2017. The said affidavit clarifies that the amounts
received by the widow and two sons of the deceased are benefits under
the Employees State Insurance Act, 1948 which are not in the nature
of compensation. Therefore, no benefit of discount for such statutory
dues received, or receivable, by the widow or dependent family
members can be taken by the insurance company whose liability in
terms of the insurance policy qua the offending vehicle arises out of
the statutory provisions under the Motor Vehicles Act, 1988 and the
contract of insurance taken out by the registered owner of the vehicle.
4. The appeal of the insurance company, thus, is meritless and is
liable to be dismissed. Ordered accordingly.
5. While it is true that the evidence of PW-3, an accountant from
the office of the employer of the deceased, shows certain benefits in
the nature of allowances and incentives being also paid to the
deceased, they cannot be taken into consideration since there is
nothing to show that they were consistent or regular emoluments. At
the same time, however, it is noted that the income assessed by the
tribunal for working out the loss of dependency is less than even the
minimum wages prevailing for the period in question.
6. The evidence clearly shows that the deceased was engaged by
the private company as a driver. He was, thus, a skilled workman.
The minimum wages payable to a skilled workman as on 12.07.2011
were Rs. 7826/- per month. The loss of dependency had to be worked
out on such basis.
7. The dependent family members were five in number and,
therefore, 1/4th is to be deducted towards personal and living expenses.
The monthly loss of dependency comes to (7826 x 3÷ 4) Rs. 5869.50
rounded off to Rs. 5870/-.
8. The deceased was 35 years old at the relevant time and the
tribunal correctly picked up the multiplier of 16. After adding future
prospects to the extent of 50% inasmuch as he was in regular
employment, the loss of dependency, thus, is calculated as (5870 x
150 ÷ 100 x 12 x 16) Rs. 16,90,560. Since the tribunal awarded only
the sum of Rs. 14,52,592/-, under this head, the net increase is
calculated as (16,90,560 - 14,52,592) Rs. 2,37,968/-. The total
compensation in the case works out (19,77,592 + 2,37,968) Rs.
22,15,560/- rounded off to Rs. 22,16,000/- . The compensation in the
case is enhanced accordingly. Needless to add, it shall carry interest as
levied by the tribunal.
9. The entire enhanced portion of the compensation shall be paid
to the widow (first appellant in MAC Appeal No. 785/2016).
10. By order dated 01.07.2015 on the file of MAC Appeal No.
490/2015, the insurer had been directed to deposit 50% of the awarded
amount with the Registrar General of this Court to be invested in fixed
deposit receipt. The said amount lying in fixed deposit shall now be
paid to the claimants in terms of the award.
11. The insurance company is directed to satisfy the award, as
modified above, by requisite deposit with the tribunal within 30 days
from today.
12. The amount deposited shall be released in terms of the award.
13. The statutory amount deposited by the insurer shall be refunded
upon proof being furnished as to the satisfaction of the award.
14. Both these appeals stand disposed of in above terms.
R.K.GAUBA, J.
JULY 07, 2017
nk
