Delhi High Court
The New India Assurance Company ... vs Sunita & Ors. on 23 November, 2017
$~R-554
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd November, 2017
+ MAC APPEAL 792/2012
THE NEW INDIA ASSURANCE COMPANY
LTD. ..... Appellant
Through: Mr. Shoumik Mazumdar,
Advocate
versus
SUNITA & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. In a motor vehicular accident that took place on 06.12.2008
involving negligent driving of a truck bearing registration no.UP-78-
AT-3543, admittedly insured against third party risk with the appellant
(insurer), Vijay Kumar died. His wife and five other members of the
family dependent on him, they being first to sixth respondents in
appeal (collectively, the claimants), instituted accident claim case
(MACT No.202/10/10) on 28.05.2009 seeking compensation. The
Motor Accident Claims Tribunal (Tribunal) awarded Rs.10,35,904/- as
compensation with interest at the rate of 7.5% p.a. calculating it by
including Rs.8,45,904/- towards loss of dependency, Rs.10,000/- for
funeral charges, Rs.60,000/- for loss to estate, Rs.20,000/- for loss of
consortium and Rs.1,00,000/- for loss of love, affection, guidance,
frustration, etc. The liability was placed at the door of the insurer to
pay the above mentioned amount besides Rs.51,000/- and Rs.11,000/-
respectively as counsels' fee.
2. The insurer, by the appeal at hand, submits that the loss of
dependency has been wrongly calculated with the help of minimum
wages (Rs.3,849) of semi skilled worker, it being unjustified. It also
takes exception to the non-pecuniary damages and the addition of
counsel's fee besides inclusion of future prospects of increase in
income to the extent of 50%.
3. The evidence led before the tribunal shows that the deceased
was engaged in his own private business of running a manufacturing
unit in the name and style of Vijay Plastic. It is unfortunate that the
widow and other claimants could not muster better proof of income.
In these circumstances, it would be most unfair to go by the notional
income based on minimum wages of an unskilled worker as is sought
by the insurer. However, following the ruling 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., the
future prospects will have to be restricted to 40%. Thus, the loss of
dependency is re-computed as [Rs.3,849/- x 140/100 x ¾ x 12 x 16]
Rs.7,75,958.40, rounded off to Rs.7,76,000/-.
4. The non-pecuniary damages also need to be brought in sync
with dispensation in Pranay Sethi (supra). Thus, an amount of
Rs.40,000/- towards loss of consortium and Rs.15,000/- each under
the heads of loss to estate and funeral expenses are added. Thus, the
total compensation is computed as [Rs.7,76,000/- + Rs.40,000/- +
Rs.15,000/- + Rs.15,000/-] Rs.8,46,000/- (Rupees Eight Lakh and
forty six thousand only). The award is reduced accordingly.
5. Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine percent) 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.]
6. There being no justification for such inclusion, directions for
payment of counsels' fee are set aside.
7. By order dated 27.07.2012, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
with UCO Bank, Delhi High Court Branch. By a subsequent order
dated 05.11.2012, fifty percent (50%) of the awarded amount was
permitted to be released to the claimants. The balance with accrued
interest shall also now be released to the claimants in terms of the
judgment of the tribunal, refunding the excess in deposit to the
insurance company.
8. Statutory amount shall be refunded to the insurance company.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 23, 2017
yg
