Delhi High Court
Bajaj Allianz General Insurance ... vs Mohd Ekraam & Ors. on 15 November, 2017
$~494
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th November, 2017
+ MAC APPEAL No. 433/2012
BAJAJ ALLIANZ GENERAL INSURANCE CO.
LTD. ..... Appellant
Through: None
versus
MOHD EKRAAM & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Maksood @ Massod, described in the claim case no.1037/08 as
the victim died due to injuries suffered in motor vehicular accident
that occurred on 08.11.2007 due to negligent driving of motor vehicle
TATA Tempo bearing no. DL1LC9149 which was admittedly insured
against third party risk with the appellant (insurer). The claim for
compensation was instituted on 05.05.2008 by his parents and wife,
they being first to third respondents (colly.). The tribunal held inquiry
and, by judgment dated 19.01.2012, upheld the said claim case and
awarded Rs.8,99,456/- as compensation with interest in favour of the
claimants, fastening the liability to pay on the insurer. The insurer had
taken the defence that the vehicle was not covered by a valid fitness
certificate. This plea was rejected by the tribunal with reference
mainly to the decision of the Supreme Court in National Insurance
Company Limited vs. Swaran Singh & Ors (2004) ACJ 1 .
2. The appeal was filed questioning the calculation of
compensation on the assumption that the deceased was an earning
hand, reference being made to some material on record of the tribunal
indicating he being only 16 years old at the relevant point of time.
Exception is also taken to the addition of future prospects of increase
in the income to the extent of 50%. The insurance company also
submits that it should have been exonerated in view of the defence
raised.
3. The appeal was admitted and put in the list of regulars as per
order dated 11.02.2016. When the matter is taken up for hearing on its
own turn, there is no appearance on behalf of the appellant.
4. The record has been perused. It does appear that in the post
mortem examination report, the age of the deceased was not indicated
and further that copy of the ration card (Ex.PW1/1) would show his
age to be 16 years in 2007. The contention of the insurer on this basis
was however rejected. This Court agrees with the view taken by the
Tribunal. The mention of the age in the ration card is based on mere
declaration. It cannot be taken as the irrefutable proof. It cannot be
ignored that the deceased was a married person, third respondent
being his wife. In these circumstances, there is no error committed by
the tribunal on the question of age or of the deceased being an earning
hand of the family.
5. However, in view of the decision 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., the
element of future prospects has to be restricted to 40% and the loss of
dependency has to be re-computed as (3516 x 140 / 100 x 2 / 3 x 12 x
18) Rs.7,08,825.60, rounded off to Rs.7,09,000/- (Rupees Seven
Lakhs and Nine Thousand Only).
6. It is noted that the tribunal had added Rs.25,000/- towards
funeral charges, Rs.1,00,000/- towards loss of love and affection,
Rs.10,000/- for loss of consortium and Rs.5,000/- towards loss of
estate. These awards also require modification in view of the ruling in
Pranay Sethi (supra). Thus, instead of the above, Rs.40,000/- is added
towards loss of consortium besides Rs.15,000/- each on account of
loss to estate and funeral expenses.
7. Therefore, the total compensation in the case is computed as
(7,09,000 + 40,000 + 15,000 + 15,000) Rs.7,79,000/- (Rupees Seven
Lakhs and Seventy Nine Thousand only). The award is modified
accordingly.
8. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum from the date of filing of the
petition till realization. [see judgment dated 22.02.2016 in MAC.APP.
165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.]
9. The defence taken by the insurer of breach of terms and
conditions of the insurance policy has been rejected by the tribunal for
correct reasons and, therefore, does not call for any interference.
10. By order dated 23.04.2012, the insurance company had been
directed to deposit the entire awarded amount with the Registrar
General. Out of such deposit, 70% was directed to be released to the
claimants. The said order was partially modified by the subsequent
order dated 02.04.2013. The registry shall now calculate the amount
payable to the claimants under the modified award and release the
balance to them accordingly, refunding the excess in deposit to the
insurance company.
11. The insurance company did not appear to assist at the time of
adjudication. Therefore, the statutory deposit is forfeited as costs to
be made over to Delhi High Court Legal Services Committee.
12. The appeal is thus disposed of in above terms.
R.K.GAUBA, J
NOVEMBER 15, 2017
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