Delhi High Court
National Insurance Co. Ltd. vs Reshmi Devi & Ors. on 11 October, 2017
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th October, 2017
+ MAC APPEAL 41/2014
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Rakhi Dubey, Advocate
versus
RESHMI DEVI & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Moti Chand, then aged 38 years, described as a shopkeeper
earning his livelihood from private business died in a motor vehicular
accident that occurred on 29.09.2010 due to the negligent driving of a
bus bearing registration no.DL-1PA-4619. On the accident claim case
(suit no.529/2010) instituted on 26.10.2010 by his wife and other
members of the family dependent on him, they being first to sixth
respondents in appeal (collectively, the claimants), the Motor Accident
Claims Tribunal (Tribunal) held inquiry and, by judgment dated
17.08.2013, awarded total compensation in the sum of Rs.15,40,720/-
directing the appellant (insurer) to pay the same with interest at the
rate of 9% p.a., it being insurer of the offending vehicle, calculating
the said amount thus :-
Loss of financial dependency Rs.13,05,720/-
Loss of love and affection Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.25,000/-
Loss of consortium to wife Rs.1,00,000/-
Total Rs.15,40,720/-
2. The insurer by the appeal at hand questions the calculation of
loss of financial dependency on the ground that the income was
notionally assessed, in absence of clear proof, with the help of
minimum wages (Rs.6448/-) but the tribunal fell into error by adding
the element of future prospects of increase to the extent of 50%,
though making appropriate deduction of one-fourth towards personal
and living expenses and correctly applying the multiplier of 15.
3. The claimants inspite of notice have failed to appear to assist.
4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia,
ruled that the element of future prospects of increase in income will
not be granted in cases where the deceased was "self employed" or
was working on a "fixed salary". Though this view was affirmed by a
bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan
Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views,
as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9
SCC 54, the issue was later referred to a larger bench, inter-alia, by
order dated 02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016
passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.),
this Court has found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on
12.01.2015, presently taking the decision in Reshma Kumari (Supra)
as the binding precedent, till such time the law on the subject of future
prospects for those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger bench of the
Supreme Court.
6. Since there was no clear proof of the actual engagement for gain
of the deceased leave alone of progressive rise in income, the element
of future prospects is kept out. Therefore, the loss of dependency is
calculated as [Rs.6,448/- x 3 / 4 x 12 x 15] Rs.8,70,480/-, rounded off
to Rs.8,71,000/- (Rupees Eight lakh and seventy one thousand).
7. It is, however, noted that the non-pecuniary damages awarded
by the tribunal are on the lower side. Following the ruling of this
court in Shriram General Insurance Co Ltd v. Usha,
MAC.APP.No.160/2015, decided on 05.05.2016, awards under the
heads of loss of love and affection and loss of consortium are
increased to Rs.1,50,000/- each and those towards loss to estate and
funeral expenses are raised to Rs.50,000/- each.
8. Thus, the total award in the case is re-computed as
[Rs.8,71,000/- + Rs.1,50,000/- + Rs.1,50,000/- + Rs.50,000/- +
Rs.50,000/-] Rs.12,71,000/- (Rupees Twelve Lakh and seventy one
thousand). The award is modified accordingly. It shall carry interest
as levied by the tribunal.
9. By order dated 17.01.2014, the insurance company had been
directed to deposit the entire awarded amount with upto date interest
and from out of such deposit, and 70% was allowed to be released to
the claimants and the balance kept in fixed deposit with UCO Bank,
High Court of Delhi, New Delhi. By order dated 29.01.2014,
however, this court was informed by the presiding officer of the
tribunal that 67.37% of the compensation has been released to the
claimants in cash while the rest of the amount representing 32.63%
had been put in fixed deposit receipt. By the order passed on the said
date, the tribunal was directed not to release any further amount
without permission from the court. The tribunal shall now calculate
the balance payable, if any, to the claimant in terms of the
modification in the award as directed above release it to them and
refund the excess with corresponding interest to the insurance
company.
10. The statutory deposit shall also be refunded to the appellant.
11. The appeal is disposed of in above terms.
Dasti.
R.K.GAUBA, J.
OCTOBER 11, 2017
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