Delhi High Court
Sudhir Kumar Gupta & Ors. vs Reliance General Insurance ... on 13 November, 2017
$~R-469 & 470
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th November, 2017
+ MAC.APP. 294/2012
RELIANCE GENERAL INSURANCE COMPANY
LTD. ... Appellant
Through: Mr. Arun Yadav, Advocate
versus
SUDHIR KUMAR GUPTA & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Adv. for R-1 &
2
+ MAC.APP. 1078/2013
SUDHIR KUMAR GUPTA & ORS. ... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
RELIANCE GENERAL INSURANCE COMPANY
LTD. ..... Respondents
Through: Mr. Arun Yadav, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Vaibhav Gutpa, son of the claimants (appellants in MACA
1078/2013, who are also first and second respondents in MACA
294/2012) died in a motor vehicular accident that had occurred on
21.09.2010 due to the negligent driving of a car bearing registration
no.DL-8C-NA-1952 admittedly insured against third party risk for the
period in question with Reliance General Insurance Company Ltd.
(appellant in MACA 294/2012 and first respondent in MACA
1078/2013).
2. On the accident claim case (MACT no.567/2010), it also
relating to the injuries suffered by Sahil Jolly, the Motor Accident
Claims Tribunal (Tribunal) held inquiry and, by judgment dated
21.12.2011, held that the accident was caused due to negligent driving
of the said car by Pritam (driver), it being registered in the name of the
Ram Swaroop (owner) and, thus, holding each of them jointly and
severally liable to pay the compensation. The compensation on
account of death of Vaibhav Gupta was determined in the total sum of
Rs.8,47,448/-, it having been calculated thus :-
Loss of dependency Rs.8,12,448/-
Loss of love and affection Rs.20,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.5,000/-
Total Rs.8,47,448/-
3. The insurer had raised the contention that it could not be held
liable to pay, as the cheque tendered for payment of premium, upon
presentation at the bank, had been dishonoured and that the policy had
been cancelled by way of appropriate communication. The tribunal
accepted the plea and directed the insurer to pay the compensation but
granted it recovery rights against the driver and the owner.
4. The tribunal did not levy any interest on the principal amount of
compensation but directed that it shall be paid by the insurer to the
claimants within 30 days and in case of default added the liability of
interest at the rate of 12% p.a. for the period of delay.
5. The insurer presses its appeal (MACA 294/2012) on the
grounds that in calculating the loss of dependency, the tribunal
wrongly added the element of future prospects of increase in income
to the extent of 50%. It is the submission of the insurer that the penal
rate of interest on account of delay was uncalled for. It also questions
the direction of the tribunal to pay and recover with the submission
that instead, in the facts and circumstances, the insurer should have
been totally exonerated.
6. Per contra, the claimants by their appeal (MACA 1078/2013)
submit that the tribunal has failed to grant any interest on the principal
amount of compensation which has rendered the award deficient. The
claimants further submit that the tribunal fell into error by adopting
the multiplier of 14 according to the age of the mother. It is the
submission of the claimants that the view taken by the tribunal in
requiring the insurance company to pay and then recover was just and
appropriate.
7. The employment or regular earnings of the deceased could not
be proved by concrete evidence. Thus, the tribunal was constrained
to go by minimum wages of the matriculate (Rs.6448/- p.m.)
Following the dispensation of a 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., in the given facts
and circumstances, the element of future prospects over and above the
notional income could not have been more than 40%. Having regard
to the rulings of the Supreme Court in Sarla Verma (Smt.) & Ors. v.
Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Pranay
Sethi (supra), the multiplier of 18 will have to be invoked as the age of
the deceased on the relevant date was 21 years.
8. The loss of dependency is, thus, re-calculated as [Rs.6,448/- x
140/100 / 2 x 12 x 18] Rs.9,74,937.60, rounded off to Rs.9,75,000/-
(Rupees Nine lakh and seventy five thousand only).
9. The non-pecuniary damages as granted by the tribunal would
also need to be re-visited. Following the ruling in Pranay Sethi
(supra), Rs.15,000/- each towards loss to estate and funeral expenses
are added to the compensation. Thus, the total compensation in the
case comes to [Rs.9,75,000/- + Rs.15,000/- + Rs.15,000/-]
Rs.10,05,000/- (Rupees Ten lakh and five thousand only). The award
is modified accordingly.
10. There was no reason why the claimants should not have been
granted the benefit of interest over and above the principal amount of
compensation from the date of filing of the claim petition. Following
the consistent view taken by this court, levy of interest at the rate of
9% p.a. (nine percent) from the date of filing of the petition till
payment is added. [see judgment dated 22.02.2016 in MAC.APP.
165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.].
11. However, the levy of penal interest at the rate of 12% p.a. post
the period of 30 days after the impugned judgment being not justified,
is set aside.
12. The insurance company concededly had issued the cover note.
The insurance policy having been cancelled, it has been granted
recovery rights against the driver and owner of the insured vehicle.
Thus, its rights are duly protected. It will not be fair to deny the
benefit to the third parties. Therefore, the plea for total exoneration is
rejected.
13. By order dated 20.03.2012 in MACA 294/2012, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest with the Registrar General within the period
specified. In terms of order dated 13.03.2013, sixty percent (60%) of
the deposited amount was permitted to be released to the claimants as
per the terms and conditions imposed by the tribunal. In the given
facts and circumstances, it is directed that the amount of compensation
already received by the first claimant Sudhir Kumar Gupta (father)
shall be treated as his share, the entire balance now going to the
second claimant Meena Gupta (mother) only. The Registry shall
release the balance lying in deposit accordingly to the second
claimant. The insurer will be obliged to satisfy the balance of its
liability towards the claimant by requisite deposit with the tribunal
under the modified award, within 30 days, making it available to be
released to the claimant.
14. It is clarified that the modification of the award does not affect
the recovery rights granted to the appellant in MACA 294/2012
against the driver and owner of the offending vehicle.
15. The statutory amount shall be refunded to the insurance
company.
16. Both appeals are disposed of in above terms.
Dasti.
R.K.GAUBA, J.
NOVEMBER 13, 2017
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