Delhi High Court
Smt. Lalita Devi & Ors. vs Sh. Mukesh Kumar & Ors. on 22 November, 2017
$~R-544-546
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 22nd November, 2017
+ MAC.APP. 757/2012
SMT. LALITA DEVI & ORS. ..... Appellants
Through: Mr. S.N. Parashar, Adv.
versus
SH. MUKESH KUMAR & ORS. ..... Respondents
Through: Mr. Sameer Nandwani, Adv.
+ MAC.APP.842/2012
NEW INDIA ASSURANCE CO.LTD. .....Appellant
Through: None.
versus
SHAILENDRA KUMAR & ORS. ....Respondents
Through: Mr. S.N. Parashar, Adv.
+ MAC.APP. 843/2012
NEW INDIA ASSURANCE CO.LTD. .....Appellant
Through: Mr. Sameer Nandwani, Adv.
LALITA DEVI & ORS. .....Respondents
Through: Mr. S.N. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 19.03.2010, a motor vehicular accident took place involving
negligent driving of motor vehicle described as tempo bearing
registration no. DL-1LE-7450 which was admittedly insured against
third party risk with the appellant (insurer) for the period in question,
it resulting in Avdhesh Kumar and Shailendra Kumar suffering
injuries, the former (Avdhesh Kumar) having died in the
consequence.
2. Two accident claim cases were filed, one MACT No. 1301/10
instituted by the wife and four other members dependent on the
deceased Avdhesh Kumar, they being collectively claimants and the
appellants in MACA No.757/2012 and the other (MACT No. 423/10)
by Shailendra Kumar. Both the cases were clubbed for inquiry. The
tribunal by common judgment dated 28.04.2012, decided the said
claim cases, holding the tempo driver responsible for the accident. In
the death case, the tribunal awarded Rs.9,05,036/- as total
compensation, it inclusive of Rs.8,55,036/- towards loss of
dependency, Rs.25,000/- towards loss of love and affection,
Rs.10,000/- towards loss of estate and Rs.5,000/- towards loss of
funeral expenses. The liability to pay the said compensation has been
fastened on the insurer with interest of 7.5% per annum.
3. The insurer by its appeals (MACA No. 842/2012 and MACA
No. 843/2012) challenges the awards in both the cases, on the ground
that the victims were employees of the owner of the offending vehicle
and, therefore, compensation in their case should have been
determined, not under Motor Vehicles Act, 1988 but in terms of
Employees' Compensation Act, 1973.
4. On the other hand, the claimants in the death case have come up
in appeal (MACA No. 757/2012) seeking enhanced compensation on
the ground that the element of future prospects of increase in income
was not included, also pointing out that the non-pecuniary damages
awarded and the rate of interest levied were inadequate.
5. In view of the ruling of 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
prospect of increase to the extent of 40% is to be factored in while
calculating the loss of dependency due to the death of Avdhesh
Kumar.
6. Thus, the loss of dependency is re-computed as
(5275x140/100x3/4x12x18) Rs.11,96,370/- rounded off to
Rs.11,97,000/-.
7. To bring the award of non-pecuniary damages in accord with
the dispensation in Pranay Sethi's (supra), it is directed that instead
of the awards granted by the tribunal, Rs.40,000/- towards loss of
consortium and Rs.15,000/- each under the heads of loss of estate and
funeral expenses be added.
8. Thus, the total compensation on account of death of Avdhesh
Kumar is recomputed as (11,97,000/-(+)40,000/-(+)15,000/-
(+)15,000/-) Rs.12,67,000/- (Rupees Twelve Lakhs and Sixty Seven
Thousand Only). The award is modified accordingly.
9. 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.]
10.The contention of the insurer to the above effect is rejected by
reference to the provision contained in Section 167 of Motor Vehicles
Act, 1988. The claimants having chosen to claim compensation
under the Motor Vehicles Act, 1988, they cannot be denied just
compensation determined thereunder.
11. By order dated 03.01.2013 in each appeal of the insurance
company, it had been directed to deposit the entire awarded
amount(s) and out of which 50% was permitted to be released to the
respective claimants. The registry shall now release the balance lying
in deposit with accrued interest to the respective claimants in each
case.
12. In terms of modification ordered above, the insurance company
will be obliged to pay further amounts in the death case. It is directed
to do so by requisite deposits with the tribunal within 30 days. It is,
however, directed that the entire enhanced portion of the award with
corresponding interest in the death case shall be paid to Lalita Devi
(widow) only. It shall be released to her in the form of fixed deposit
receipts taken out from a Nationalised bank for a period of seven
years with right to draw periodic interest.
13. The statutory amounts shall be refunded after proof of the
awards having been satisfied is shown.
14. These appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 22, 2017
umang
