Delhi High Court
National Insurance Co. Ltd. vs Chamki @ Afsana & Ors. on 15 November, 2017
$~8 & 21
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th November, 2017
+ MAC.APP. 512/2016
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv.
versus
CHAMKI @ AFSANA & ORS. ..... Respondents
Through: Mr. Neeraj Kr. Jha, Adv. for
claimants.
+ MAC.APP. 509/2016
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv.
versus
MUMTAJ HUSSAIN & ORS. ..... Respondents
Through: Mr. Neeraj Kr. Jha, Adv. for
claimants.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 19.04.2012 at about 5.30 a.m. in the area of Gajrola, Uttar
Pradesh, a motor vehicular accident took place involving negligent
driving of vehicle described as TATA 407 bearing registration no. UP
24 D 7186 (TATA 407) resulting in several persons suffering injuries,
two of them being Furkan Hussain & Tofiq, both of whom died.
2. Several accident claim cases came to be instituted before the
motor accident claims tribunal including one (MACT No. 217/2012)
by the father of Furkan and another (MACT 218/2012) by the wife,
children and father of Tofiq. All the claim cases were clubbed by the
tribunal for inquiry and decided by common judgment dated
30.03.2016, whereby it was held that the accident had occurred due to
negligence on the part of driver of offending vehicle (Raja Abbas), a
respondent in these appeals.
3. The vehicle TATA 407 was registered in the name of Smt.
Bhoori, another respondent in these appeals, and insured against third
party risk for the period in question with National Insurance company
Ltd. (insurer) on which the liability to indemnify was fastened.
4. In the case of claim on account of death of Furkan Hussain, the
tribunal awarded Rs. 8,83,160/-, it inclusive of Rs. 7,58,160/-, on
account of loss of dependency, Rs. 1,00,000/- for loss of love &
affection and Rs. 25,000/- towards funeral expenses.
5. In the case on account of death of Tofiq, the tribunal awarded
total compensation in the sum of Rs. 19,98,568/-, it inclusive of Rs.
16,73,568/- on account of loss of dependency, besides Rs. 1,00,000/-
each towards loss of love & affection, loss of consortium, loss to
estate and Rs. 25,000/- for funeral expenses.
6. In both the cases, the insurance company was called upon to
pay with interest @ 9% per annum.
7. The appeals have been brought by the insurer in the two
aforesaid cases questioning the calculation of compensation.
8. The tribunal found that the claimants had not been able to
bring any concrete evidence on the question of gainful employment or
earnings and, therefore, went by the minimum wages of unskilled
worker (Rs. 7020/-) in the case of Furkan Hussain and minimum
wages of non- matriculate worker (Rs. 7,748/-) in the case of Tofiq as
the notional income. In each case, the tribunal added element of future
prospects of increase in income to the extent of 50% to which
exception is taken by the insurer.
9. The insurer further submits that the non-pecuniary damages
awarded in both the cases are excessive.
10. In the case of Tofiq it also questions the loss of dependency
pointing out that the father (fourth respondent in MAC Appeal No.
512/2016) had admitted that he himself was earning and, therefore, not
dependent on the deceased.
11. In its decision dated 31.10.2017 in SLP (C) 25590/2014,
National Insurance Company Ltd. Vs. Pranay Sethi and Ors., a
Constitution Bench of the Supreme Court has ruled that in case of self-
employed persons, the element of future prospects of increase would
have a cap of 40% in case death occurs before the age of 40 years.
The said cap would apply in both the cases at hand. Therefore, the
loss of dependency will have to be recalculated accordingly.
12. A perusal of the record confirms that the fourth respondent in
MAC Appeal No. 512/2016, he being the father of the deceased Tofiq
in the course of his testimony had conceded that he was himself
gainfully employed and earning his livelihood. In these
circumstances, he cannot be treated as a dependent. In this view, in
the case of deceased Tofiq the personal & living expenses will have to
be deducted to the extent of 1/3rd, rather than 1/4th.
13. It is, however, noted that the tribunal had committed error in the
calculation of compensation in the case of death of Furkan. He was a
bachelor and, therefore, the deduction on account of personal & living
expenses had to be to the extent of 50%. [Sarla Verma & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121].
14. For the foregoing reasons, the loss of dependency in the case of
deceased Furkan is recomputed as (7020 x 140 ÷ 100 ÷ 1/2 x 12 x 18)
Rs. 10,61,424/-, rounded off to Rs. 10,62,000/-.
15. The non-pecuniary damages awarded by the tribunal would
need to be modified since they are not in accord with the ruling in
Pranay Sethi (supra). Following the dispensation in the said case,
amounts of Rs. 15,000/- each towards loss of estate and funeral
expenses are added.
16. Thus, the total compensation in the case of death of Furkan is
computed as (Rs.10,62,000 + 15,000 + 15,000), Rs.10,92,000/-
(Rupees Ten Lacs Ninety Two Thousand Only). It is noted that
instead of being decreased, the amount of compensation on the
grounds submitted before this Court needs to be increased. Ordered
accordingly.
17. Coming to the case of claim on account of death of Tofiq, the
loss of dependency is recalculated as (7748 x 140 ÷100 x 2 ÷ 3 x 12 x
16) Rs. 13,88,441.60, rounded off to Rs. 13,89,000/-.
18. Following the ruling in Pranay Sethi (supra), an amount of Rs.
40,000/- towards loss of consortium and Rs. 15,000/- each towards
loss to estate and funeral expenses are added. Thus, the total
compensation is determined as (13,89,000 + 40,000 + 15,000 +
15,000) Rs. 14,59,000/- (Rupees Fourteen Lacs Fifty Nine Thousand
Only). The award in the case of death of Tofiq is reduced.
19. Needless to add, in both the claim cases the interest as levied by
the tribunal shall also be paid by the insurance company, from date of
filing of petition till realization.
20. In MAC Appeal No. 509/2016, relating to the claim of
compensation on account of death of Furkan Hussain, the insurance
company had been directed vide order dated 19.07.2016 to deposit the
entire awarded amount with interest @ 9% p.a. with UCO Bank.
Some portion of the said deposited amount was released by orders
dated 19.07.2016 and 08.12.2016. Since the amount of compensation
has been increased, the entire portion lying in deposit with accrued
interest shall be released to the claimant. The insurance company is
directed to satisfy the enhanced award with upto date interest with the
tribunal within 30 days, so as to be made available to be released to
the claimant.
21. In MAC Appeal No. 512/2016, relating to the claim on account
of death of Tofiq, by similar order dated 19.07.2017, the insurance
company had been directed to deposit the entire awarded amount with
upto date interest @ 9% with UCO Bank and some portion was
allowed to be released to the claimants, the balance kept in fixed
deposit receipts. Some further amount was permitted to be released by
subsequent orders dated 08.12.2016 and 28.04.2017. The registry
shall calculate the balance payable to the claimants in terms of the
modification ordered above and release the same refunding the excess
in deposit with corresponding interest to the insurance company. The
award, however, having been reduced in the said case, it is directed
that the entire balance shall now fall to the share of the first claimant
Chamki @ Afsana alone.
22. Both appeals are disposed of accordingly.
23. The Statutory deposits in both the appeals shall be refunded to
the appellant after proof is shown of the award having been satisfied in
each claim case.
R.K.GAUBA, J.
NOVEMBER 15, 2017
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