Delhi High Court
National Insurance Co. Ltd vs Kumari Asha K.Thomas & Ors on 14 July, 2017
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th July, 2017
+ MAC.APP. 243/2008 and CM APPL.5495/2008
NATIONAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
KUMARI ASHA K.THOMAS & ORS ..... Respondents
Through: Mr. Thomas Oomen, Advocate
for R-1 to R-4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Thomas K. Koshy (born on 20.12.1946), aged about 55 years,
working as lower division clerk (LDC) with Border Roads
Organization (BRO) at the then emoluments of Rs.6600/-, as assessed
by the Motor Accident Claims Tribunal (the Tribunal), died as a result
of the injuries suffered in a motor vehicular accident which occurred
on 24.04.2002, statedly due to negligent driving of taxi bearing
registration no.HR-55T-8750, admittedly insured against third party
risk with the appellant insurance company (insurer). His wife, three
daughters and father jointed together to institute accident claim case
(suit No.352/2002) before the Motor Accident Claims Tribunal (the
tribunal), during the pendency of which the wife died, the case being
prosecuted further by the other claimants.
2. The tribunal upheld the case of the claimants that death had
occurred due to negligent driving of the taxi driver and awarded
compensation in the sum of Rs.6,90,000/-, it inclusive of loss of
dependency calculated at Rs.6,33,600/-, besides Rs.20,000/- as
composite damages on account of loss of consortium and loss of love
and affection with Rs.15,000/- towards cremation charges and
Rs.21,000/- as actual medical expenses.
3. The insurer, in the course of contest, had pointed out to the
tribunal that the licence for driving issued in favour of fifth respondent
(though for light motor vehicle) (LMV) did not have endorsement
necessary for he to be permitted to drive a taxi (a commercial transport
vehicle). The tribunal declined to exonerate the insurance company
on such ground holding that the licence for LMV would hold good for
a taxi.
4. The insurer is in appeal pressing it on two grounds. It is
submitted that, in calculation of the loss of dependency, the element of
50% future prospects has been added which given the age (55 years)
of the deceased was unjustified. It is also submitted that the plea of
the insurance company respecting the breach of terms and conditions
of the policy should have been accepted and it should have atleast
been granted recovery rights.
5. Per contra, the counsel for the claimants submitted that the
award of non-pecuniary damages is inadequate. The counsel submits
that he has nothing to say on the plea respecting breach of terms and
conditions of the policy.
6. The plea of the insurance company respecting breach of the
terms and conditions of the policy does not impress this court in view
of dicta in National Insurance Company V. Swaran Singh (2004) 3
SCC 297 and New India Assurance Company Limited vs. Arvinder
Kaur & Ors., MAC APP.32/2006, decided on 17.02.2016.
7. It is noted that the deceased was in regular government
employment, he being a clerk in Border Roads Organization. The
evidence clearly shows that his service conditions would result in
progressive rise in income for the remainder of his service had he not
died. In the face of such cogent and irrefutable evidence, the element
of future prospects is bound to be factored in. But given the age (55
years), it could not have been more than 15%.[see: judgment dated
28.03.2016 in MAC.APP. 548/2013 United India Insurance Co. Ltd.
v. Kamla & Ors.].
8. In this view, the loss of dependency is re-calculated as (6600/- x
115÷100 x 3÷4 x 11 x 12) Rs.7,51,410/- rounded off to Rs.7,52,000/-.
In this view, the loss of dependency is found to have been under
assessed by the tribunal rather than being awarded in excess.
9. The contention of the claimants about the inadequacy of non-
pecuniary damages is also correct. Following the view taken in
Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Shashikala V. Gangalakshmamma (2015) 9 SCC 150, compensation in
the sum of Rs.1 lakh each on account of loss of love & affection and
loss of consortium and Rs.25,000/- each towards loss of estate and
funeral expense are added. Taking into account the actual medical
expenses (Rs.21,000/-), the total compensation which should have
been awarded in the case is worked out as (7,52,000/- + 1,00,000/- +
1,00,000/- + 25,000/- + 25,000/- + 21,000/-) Rs.10,23,000/-.
10. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the tribunal.
11. While admitting the appeal, by order dated 11.04.2008, the
appellant had been directed to deposit 75% of the awarded amount
with interest with the tribunal, balance 25% along with interest to be
kept in fixed deposit receipt, initially for a period of one year. Since
the compensation has been enhanced, the balance amount shall also be
released to the claimants.
12. The apportionment of the award, as directed by the tribunal,
shall remain undisturbed. The enhanced portion, however, shall be
equally divided amongst four claimants with proportionate interest.
The entire enhanced portion shall be kept in the form of fixed deposit
receipts in a nationalized bank in their respective names for a period of
three years with right to draw periodic interest.
13. The statutory amount shall be refunded on satisfaction of the
award.
14. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J
JULY 14, 2017/vk
