Delhi High Court
Jyoti & Ors vs National Insurance Company Ltd & ... on 28 July, 2017
$~9 & 10 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th July, 2017
+ MAC.APP. 236/2016
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. D.K. Sharma, Adv.
versus
JYOTI & ORS ..... Respondents
Through: Mr. Syed Hasan Isfahani, Adv.
with Mr. Vikas Yadav, Adv. &
Mr. Parvez Zaidi, Adv.
Dr. Ritu Bhardwaj, Standing
Counsel for RSRTC
+ MAC.APP. 632/2016 and CM APPL.29248/2016
JYOTI & ORS ..... Appellants
Through: Mr. Syed Hasan Isfahani, Adv.
with Mr. Vikas Yadav, Adv. &
Mr. Parvez Zaidi, Adv.
versus
NATIONAL INSURANCE COMPANY LTD & ORS.
... Respondents
Through: Mr. D.K. Sharma, Adv.
Dr. Ritu Bhardwaj, Standing
Counsel for RSRTC
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Vinod Yadav, 30 years old at that time, suffered death due to
injuries inflicted upon him in a motor vehicular accident that occurred
on 27.01.2013 in District Bikaner, Rajasthan due to rash driving of bus
bearing registration No.RJ-07PA-4841 (the bus) admittedly insured
against third party risk with the appellant insurance company (the
insurer). His wife and other members of the family dependant upon
him (they being appellants in MAC APP.632/2016, the claimants)
instituted accident claim case (Petition No.341/2013) on 20.11.2013
seeking compensation. The Motor Accident Claims Tribunal (the
tribunal), after inquiry, upheld the claim on the principle of fault
liability and awarded compensation which was calculated in the total
sum of Rs.32,40,600/- in the following manner:-
Sl.No. Head Amount
(in Rs.)
1) Medical Expenses 4,13,600/-
2) Loss of dependency 25,92,000/-
3) Loss of Love and Affection 1,00,000/-
4) Loss of Consortium 1,00,000/-
5) Funeral Expenses 25,000/-
6) Loss to estate 10,000/-
Total 32,40,600/-
2. In calculating the loss of dependency, the tribunal took income
of the deceased of the deceased at Rs.12,000/-, added 50% towards
future prospects of increase, made deduction of one-fourth towards
personal and living expenses, and applied the multiplier of 16.
3. The insurer, on which the liability to pay compensation has
been fastened, has come up questioning the above mentioned
computation of loss of dependency on the ground that there was no
basis to the assumption that the income was Rs.12,000/- per month,
the evidence of Ashish Kohli (PW-2) produced by the claimants
having been disbelieved. The insurer also questions the addition of
the element of future prospects.
4. Per contra, the claimants by their appeal (MAC
APP.632/2016), have submitted that the multiplier of 16 was wrongly
adopted and that as per Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, the appropriate multiplier of
17 should have been the basis. It is also submitted that the award
under the non -pecuniary heads of damages are inadequate.
5. There is merit in the contentions raised in both the appeals. The
evidence of PW-2 was brought in by the claimants to prove that the
deceased was engaged by him as an employee in his transport business
at salary of Rs.18,000/- per month. This obviously could not have
been believed in absence of any record whatsoever. The evidence of
PW-2 was based more on his oral word than anything submitted in
corroboration. In these circumstances, the tribunal could not have
gone by the assumption of Rs.12,000/- as the wages. Such finding is
actually without any evidence in support. The minimum wages of a
skilled worker during the relevant period were Rs.9386/- per month
which should have been the correct basis of calculation.
6. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia,
ruled that the element of future prospects of increase in income will
not be granted in cases where the deceased was "self employed" or
was working on a "fixed salary". Though this view was affirmed by a
bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan
Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views,
as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9
SCC 54, the issue was later referred to a larger bench, inter-alia, by
order dated 02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors., (2015) 9 SCC 166.
7. Against the above backdrop, by judgment dated 22.01.2016
passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.),
this Court has found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on
12.1.2015, presently taking the decision in Reshma Kumari (Supra) as
the binding precedent, till such time the law on the subject of future
prospects for those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger bench of the
Supreme Court.
8. Since there was no clear proof on record regarding employment
or earnings, the element of future prospects will have to be kept aside.
Having regard to the age, the multiplier of 17 was proper.
9. Thus, the loss of dependency is re-computed as (9386/- x 3/4 x
12 x 17) Rs.14,36,058/-.
10. Having regard to the fact that the death occurred on 27.01.2013,
following the view taken in MAC.APP.No.160/2015 Shriram General
Insurance Co Ltd v. Usha decided by this court on 05.05.2016, non-
pecuniary damages in the sum of Rs.1,50,000/- each towards loss of
love & affection and towards loss of consortium and Rs.50,000/- each
towards loss of estate and funeral expense are added.
11. Hence, adding the element of Rs.4,13,600/- on account of
medical expenses, the total re-computed compensation comes to
(14,36,058/- + 1,50,000/- + 1,50,000/- + 50,000/- + 50,000/- +
4,13,600/-) Rs.22,49,658/- rounded off to Rs.22,50,000/-, which shall
carry interest as levied by the tribunal.
12. The award is modified accordingly.
13. It is noted that the tribunal had specified the amount falling to
the share of different claimants. In terms of order dated 16.03.2016
passed in MAC APP.236/2016, the insurance company had been
directed to deposit the entire awarded amount with upto date interest,
out of which 50% was allowed to be released to the claimants. Since
the award has been reduced, it is directed that the amount already
released to the claimants other than the first claimant Jyoti (widow)
shall be restricted to the amount already received by them, the entire
balance falling to the share of widow (Jyoti) alone.
14. The tribunal shall re-compute the amount payable to the first
claimant (Jyoti) in terms of the award as modified above, releasing it
from out of the amount deposited, refunding the excess amount to the
insurance company.
15. Statutory deposit made in MAC Appeal No.236/2016 shall be
refunded to the appellant insurance company.
16. Both the appeals are disposed of in above terms.
17. Pending application also stands disposed of.
R.K.GAUBA, J.
JULY 28, 2017
vk
