Delhi High Court
National Insurance Co Ltd vs Basanti Devi And Ors. on 27 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 27, 2017
+ MAC.APP. 572/2008
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Shoumik Mazumdar,
Advocate for Mr. Pankaj Seth,
Advocate
versus
BASANTI DEVI AND ORS. .....Respondents
Through: Mr. Mohit Kukreja, Advocate for
respondents No.1 to 4
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Appellant is the Insurer of bus in question, which was involved in a
road accident on 5th August, 1996 and in the accident, one Nandan Singh
Fonia, aged 33 ½ years, a Junior Accounts Officer in CPWD, had died.
The challenge in this appeal is to impugned Award of 26 th March, 2008,
which was modified vide order of 18th August, 2008 whereby
compensation of `5,19,500/- (inclusive of interim Award) with interest @
7% per annum has been granted. The breakup of compensation granted as
per modified Award is as under: -
1. Loss of dependency `4,94,500/-
2. Loss to estate and consortium `15,000/-
3. Funeral & other expenses `10,000/-
Total `5,19,500/-
In calculating 'loss of dependency', learned Motor Accident Claims
Tribunal (hereinafter referred to as 'Tribunal') has taken the income of
deceased as `6,431/- and deducted `4,000/- on account of employment of
wife of deceased in place of deceased. While noting that there were four
dependants, learned Tribunal has applied the multiplier of 17 and
deducted 1/3rd towards 'personal expenses'.
As per order of 15th September, 2009, service is complete.
In this appeal, reduction of quantum of compensation is sought by
learned counsel for appellant-Insurer by submitting that multiplier of 16
instead of 17 ought to have been applied. It is next submitted that though
recovery rights have been granted to appellant-Insurer on account of
driving licence in question being fake but the liability to pay
compensation is of driver and owner of bus in question and not of
appellant-Insurer and so, appellant-Insurer deserves to be exonerated
from paying the awarded compensation.
On the contrary, learned counsel for respondents-Claimants
supports impugned Award and submits that at best, wife of deceased was
not a dependent, but the awarded compensation needs to be granted to the
remaining Claimants and so, deduction of `4,000/- from the income of
deceased was unjustified and that the recovery of rights have been rightly
granted and so, this appeal deserves to be dismissed.
Upon hearing and on perusal of impugned modified Award and the
evidence on record, I find that the applicable multiplier is of 16 and
learned Tribunal has erred in applying the multiplier of 17. So far as
deduction of `4,000/- per month from the income of deceased has been
made, I find that it has been rightly done because wife of deceased was
given employment in place of deceased on compassionate grounds and
so, 'loss of dependency' has to be accordingly worked out.
Regarding calculation of 'future prospects', learned Tribunal has
erred in calculating it on average basis. Supreme Court in Sarla Verma
(Smt.) and Others v. Delhi Transport Corporation and Another (2009) 6
SCC 121 has reiterated that addition of 50% towards 'future prospects'
ought to be made where deceased is in the age bracket of 30-40 years. So,
while adding 50% towards 'future prospects' and by applying multiplier
of 16, the 'loss of dependency' needs to be re-worked. Since there are
four dependents, therefore, deduction of 1/3rd towards 'personal
expenses' has been erroneously made by learned Tribunal and infact
deduction of 1/4th towards 'personal expenses' ought to be made. Upon
doing so, 'loss of annual income' is re-assessed as under: -
`6,431/- p.m. - `4,000/- p.m. =`2431/- plus 50% =`3,646/- p.m.
Accordingly, 'loss of dependency' is reassessed as under: -
`3,646/- x 12 x 1/4 x 16 = `5,25,024/-
Infact, learned Tribunal has assessed the 'loss of dependency' at
`4,94,496/-, which is less than the actual 'loss of dependency. Since
respondents-Claimants have not preferred any cross-objections in this
appeal, therefore, in view of Supreme Court's decision in Ranjana
Prakash & Ors. v. Divisional Manager & Anr., (2011) 11 SCC 639, the
enhancement under the head of 'loss of dependency' and other heads is
uncalled for. Consequentially, the awarded amount is maintained.
So far as exoneration of appellant-Insurer is concerned, I find that
in the first instance, the Insurer is liable to pay and then is entitled to
recover it from driver and owner of the vehicle in question, who have
chosen not to contest this appeal. It is so said in view of Supreme Court's
decision in Pushkar Mehra v. Brij Mohan Kushwaha and Others, (2015)
12 SCC 688.
In light of the aforesaid, finding no substance in this appeal, it is
dismissed. In terms of order of 10th December, 2009, the balance of
deposited compensation be released to respondents-Claimants by UCO
Bank, Delhi High Court Branch, New Delhi.
Statutory amount, if any, be refunded to appellant-Insurer as per
Rules.
With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
MARCH 27, 2017
s
