Delhi High Court
Bijora Devi & Ors. vs Hdfc Ergo General Insurance ... on 21 November, 2017
$~R-528 & 529
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st November, 2017
+ MAC APPEAL 710/2012
HDFC ERGO GENERAL INSURANCE COMPANY
LTD. ..... Appellant
Through: Ms. Neerja Sachdeva,
Advocate
versus
BIJORA DEVI & ORS. ..... Respondents
Through: Mr. D.S.Bora and Mr. R.S.
Rawat, Advocates for the
respondents / claimants
+ MAC APPEAL 844/2013 and CM 18346/2013 & 19796/2015
BIJORA DEVI & ORS. ..... Appellants
Through: Mr. D.S.Bora and Mr. R.S.
Rawat, Advocates
Versus
HDFC ERGO GENERAL INSURANCE COMPANY
LTD. & ORS. ..... Respondents
Through: Ms. Neerja Sachdeva,
Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Dinesh Singh, then aged 38 years, earning his livelihood as a
driver, died due to the injuries suffered in a motor vehicular accident
that occurred on 16.02.2011 due to the negligent driving of a motor
vehicle described as one bearing registration no.HR-29-V-8707
admittedly insured against third party risk with HDFC Ergo General
Insurance Company Ltd. (insurer) for the period in question. On
accident claim case (suit no.12/2011) instituted on 11.05.2011 by his
wife and three other members of the family dependent on him
(collectively, the claimants), the Motor Accident Claims Tribunal
(Tribunal), by judgment dated 25.01.2012, awarded compensation in
the total sum of Rs.15,12,000/- and fastened the liability against the
insurer to pay. The amount of compensation thus awarded includes
Rs.14,22,000/- towards loss of dependency, Rs.20,000/- towards
funeral charges, Rs.50,000/- towards loss of love and affection and
Rs.10,000/- each for loss of consortium and loss to estate.
2. The insurer has come up in appeal (MACA 710/2012)
questioning the award under the head of loss of dependency on the
ground that the element of future prospects of increase was wrongly
added to the extent of 50%. On the other hand, the claimants also
have come up in appeal (MACA 844/2013) seeking enhancement of
the compensation stating that the income was wrongly taken as
Rs.7,000/- p.m.
3. During the pendency of these appeals, claimants were given
opportunity to lead additional evidence. They examined Manish
Kumar Sharma (AW-1) in MACA 844/2013. The evidence of AW-1
has proved that the deceased was engaged as a driver with M/s.
Formula Manpower Solutions Pvt. Ltd., his salary slips for the months
of October 2010 to December 2010 having been proved (Ex. AW1/1
to 3). It is noted that the income of the deceased would vary from
month to month mostly on account of over time allowance. He was
otherwise a regular employee who was receiving basic pay plus
allowances in the nature of house rent allowance, food allowance and
washing allowance. In these circumstances, as submitted by the
claimants, the average income of the deceased can be taken as
[Rs.13,090.50 + Rs.14,014/- + Rs.11,842.22 / 3] Rs.12,982.24,
rounded off to Rs.12,990/-. The loss of dependency is calculated
accordingly. Given the fact that the deceased was in regular
employment having regard to his age, the element of future prospects
of increase to the extent of 50% deserves to be added.
4. There is no room for any additions on account of employee's
contribution to Employees Provident Fund or Employees State
Insurance Scheme or for that matter towards bonus in the present case.
5. Thus, the loss of dependency is re-calculated as [Rs.12,990 x
150/100 x 3 / 4 x 12 x 15] Rs.26,30,475/-, rounded off to
Rs.26,31,000/-.
6. The non-pecuniary heads of damages also have to be brought in
sync with the dispensation in 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. Thus,
the amount of Rs.40,000/- towards loss of consortium and Rs.15,000/-
each on account of loss to estate and funeral expenses are added. The
total compensation is re-computed as [Rs.26,31,000/- + Rs.40,000/- +
Rs.15,000/- + Rs.15,000/-] Rs.27,01,000/- (Rupees Twenty seven lakh
and one thousand only).
7. The award is modified accordingly.
8. By order dated 11.07.2012, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
with the UCO Bank, Delhi High Court branch and from out of such
deposit, sixty percent (60%) was permitted to be released to the
claimants. Since the amount of compensation has been increased, the
entire balance shall be released to the claimants in terms of the
modification ordered above. The insurance company is directed to
satisfy the balance of its liability under the modified award by
requisite deposit with the tribunal within 30 days.
9. The statutory deposit made by the insurance company shall be
refunded after proof is furnished of the award having been satisfied.
10. Both the appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
NOVEMBER 21, 2017
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