Delhi High Court
Reliance General Insurance ... vs Shakuntala & Ors on 8 November, 2017
$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 08th November, 2017
+ MAC.APP. 15/2017
RELIANCE GENERAL INSURANCE COMPANY
LTD ..... Appellant
Through: Mr. A.K. Soni, Advocate
versus
SHAKUNTALA & ORS ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-1
to 4
+ MAC.APP. 966/2017
SHAKUNTALA & ORS ..... Appellants
Through: Mr. Anshuman Bal, Advocate
versus
RELIANCE GENERAL INSURANCE COMPANY
LTD. & ORS ..... Respondents
Through: Mr. A.K. Soni, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Dayal Singh Rawat, then 55 years old, working with UCO Bank
at a gross salary of Rs.33,486/- p.m., suffered injuries in a motor
vehicular accident that occurred on 31.12.2010 due to negligent
driving of a car bearing registration no.DL-9C-QS-0407 (car) which
was admittedly insured against third party risk with Reliance General
Insurance Company Ltd. (insurer) for the period in question and died
in the consequence. His wife and three children (collectively, the
claimants) instituted an accident claim case (suit no.4649/2016) on
19.02.2011 seeking compensation under Section 166 of the Motor
Vehicles Act, 1988 impleading the driver, owner and insurer of the car
as party respondents.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 15.10.2016, accepted the claim that the death
had occurred due to negligent driving of the car by its driver. It
awarded compensation in the total sum of Rs.31,60,000/- calculating it
thus :-
Loss of income Rs.29,25,000/-
Loss of Estate Rs.10,000/-
Love and affection Rs.1,00,000/-
Consortium Rs.1,00,000/-
Funeral expenses Rs.25,000/-
Total Rs.31,60,000/-
3. It fastened the liability to pay with interest at the rate of 9% p.a.
on the insurer.
4. The insurer has come up in appeal (MACA 15/2017) submitting
that the award is excessive, arguing that the finding on the issue of
negligence is erroneous and unfounded. It also questions the
computation of compensation pointing out that the tribunal has failed
to make deduction on account of the income tax liability. It is also
submitted that the non-pecuniary heads of damages awarded are
excessive. The counsel for the insurer further submits that the
deceased was more than 55 years old and, therefore, the multiplier of 9
should have been applied.
5. Per contra, the claimants by their appeal (MACA 966/2017)
submit that the tribunal fell into error by deducting Rs.275/- as
conveyance allowance from the monthly income while calculating loss
of income and by not including the benefit of future prospects. It is
also the submission of the claimants that deduction on account of
personal and living expenses should have been to the extent of one-
fourth keeping in view that there were four dependent family
members.
6. The arguments on the issue of negligence raised by the
insurance company cannot be accepted. The negligence on the part of
the car driver is writ large even in the pleadings. The car had swerved
suddenly during the course of journey, the evidence showing it having
collided against the pavement. Even if the driver of the car lost
control in order to avoid collision against a motorcycle which had
suddenly come in front, the sequence of events narrated reveal the
negligence on his part. He was expected to be watchful about the
conduct of other motorists on the road and to keep not only a safe
distance but also move at a speed where he could check it if so
required. The tribunal's conclusion based on the principle of res ipsa
loquitur does not call for any interference.
7. There are indeed errors in the calculation of loss of dependency
by the tribunal. The amount of Rs.275/- receivable as conveyance
allowance should not have been deducted since it was a part of the
regular terms and conditions of the service and would result in
corresponding savings to the family.
8. Since the deceased was a regular and permanent employee of
the bank, the element of future prospects had to be factored in. Going
by 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., this factor will have to be restricted to
15%.
9. It appears that the first claimant Shakuntala appearing as her
own witness PW-1 admitted that the eldest daughter Poonam (second
claimant) was in private job. But then, it has to be remembered that
she was just 22 years old and being unmarried would still be
dependent on the father. The mere fact that she may have joined some
service around the time of the death would not keep her claim out of
consideration. In these circumstances, deduction on account personal
and living expenses will have to be to the extent of one-fourth.
10. On the income of Rs.33,486/-, the income tax liability, as per
the prevalent rates, for the financial year 2010-2011 would be about
Rs.15,000/-, which will have to be discounted.
11. As per voter identity card (Ex. PW1/5), the age of the deceased
as on 01.01.2008 was 53 years. In these circumstances, his age on the
date of death (31.12.2010) would be 55 years 11 months. In this view,
the submission of the insurer about the multiplier must be accepted.
Instead of multiplier of 11, the multiplier of 9 would apply.
12. The loss of dependency is, thus, re-calculated as [Rs.33,486/- x
12 - Rs.15,000/- x 115/100 x 3/4 x 9] Rs.30,02,783.40, rounded off to
Rs.30,03,000/- (Rupees Thirty Lakh and three thousand only).
13. Following the ruling of the Constitution Bench in Pranay Sethi
(supra), the only permissible non-pecuniary damages in the sum of
Rs.15,000/- each towards loss to estate and funeral expenses and
Rs.40,000/- on account of loss of consortium are added. Thus, the
total compensation in the case comes to [Rs.30,03,000/- + Rs.15,000/-
+ Rs.15,000/- + Rs.40,000/-] Rs.30,73,000/- (Rupees Thirty Lakh and
seventy three thousand only). The award is modified accordingly. It
shall carry interest as levied by the tribunal.
14. By order dated 09.01.2017 in MACA 15/2017, the insurance
company was directed to deposit the entire awarded amount with
interest with the tribunal within the period specified. By order dated
10.03.2017, fifty percent (50%) of the said awarded amount was
released to the claimants. The tribunal, it is noted, had apportioned
the award by specifying the amounts in favour of the four claimants.
As the compensation has been reduced, it is directed that the amount
already received by the claimants other than Shakuntala (widow) shall
be treated as the amount receivable by them, the entire balance going
to the first claimant Shakuntala (widow) only. The tribunal shall
release the amount payable to the claimant in terms of the
modification ordered above refunding the excess in deposit to the
insurance company.
15. The statutory amount be refunded to the insurance company.
16. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 08, 2017
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