Delhi High Court
New India Assurance Co Ltd. vs Nisha Yadav & Ors on 29 November, 2017
$~R-588
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 29th November, 2017
+ MAC. APPEAL 957/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Through: Mr. Salil Paul, Advocate.
versus
NISHA YADAV & ORS .....Respondents
Through: Mr. Nitinjya Chaudhry with
Mr. Rajiv Trivedi, Advocates
for R1 to 5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rajendra Prasad Yadav, then aged 46 years, a hawker by
profession, suffered fatal injuries due to motor vehicular accident that
occurred on 10.10.2011, due to negligent driving of bus bearing
registration No. DL-1PC-0999, which was concededly insured against
third party risk with the appellant (insurer) for the period in question.
On the accident claim case (Suit No. 535/11), instituted on
09.11.2011, by the first to fifth respondents (collectively, the
claimants), the Tribunal awarded compensation in the total sum of
Rs.16,88,000/-, which included Rs.16,38,000/- towards loss of
dependency, Rs.25,000/- for loss of love and affection, Rs.10,000/-
each for loss of consortium and loss of estate and Rs.5,000/- for
funeral expenses, the liability having been fastened on the insurer to
pay the said amount with interest at the rate of 9% per annum with
further direction that in case of default in payment within 30 days, rate
of interest would increase to 12% per annum.
2. The insurer presses the appeal at hand to question the
calculation of loss of dependency on three counts, namely, the income
of Rs.10,000/- per month, the addition of future prospects the extent of
30% and the invocation of multiplier of 14.
3. Per contra, the counsel for the claimant submitted that the non-
pecuniary damages be brought in accord with 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., which is also referred to by the insurer to press home
the earlier mentioned submissions.
4. Indeed, there was no formal proof of income of the deceased
from his business which had no fixed place. In these circumstances,
the assumption of Rs.10,000/- per month as income is unfounded. The
Tribunals and Courts have consistently fallen back on minimum
wages in such fact situations. In the present case, the minimum wages
of matriculate of Rs.8,112/- per month should have been invoked as
the deceased had studied upto 10th standard. Keeping in view the age
of the deceased, in view of the ruling in Pranay Sethi (supra), the
future prospects of increase in income will have to be restricted to
25% and the multiplier of 13 adopted.
5. Thus, the loss of dependency is re-computed as (8112 X
125/100 X 3/4 X 12 X 13) Rs.11,86,380/- rounded off to
Rs.11,87,000/-.
6. Following the dispensation in Pranay Sethi (supra), in lieu of
the non-pecuniary damages awarded by the Tribunal, Rs.40,000/-
towards loss of consortium and Rs.15,000/- each for loss of estate and
funeral expenses are added.
7. Therefore, the total compensation payable in the case is
calculated as (11,87,000 + 40,000 + 15,000 + 15,000) Rs. 12,57,000/-
(Rupees Twelve Lakhs and Fifty Seven Thousand Only). The award
is modified accordingly. It shall carry interest at 9% (nine per cent)
from the date of filing of the petition till its realization.
8. There being no justification for such direction, the direction
about rate of interest in case of default @ 12% is set aside.
9. By order dated 31.08.2012, the insurer had been directed to
deposit the entire awarded amount with UCO Bank, Delhi High Court
Branch. By order dated 04.12.2012, 80% of said amount was
permitted to be released to the claimants. The registry shall calculate
the amount payable to the claimants in terms of the modified award
and in case there is any deficiency, release the same from the balance.
Conversely, if excess has been paid, the claimants will be obliged to
refund the same to the insurance company. In case of default on either
side, the parties are left to take out proceedings for recovery before the
Tribunal.
10. The statutory amount shall be refunded to the appellant.
11. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 29, 2017
srb
