Delhi High Court
New India Assurance Co. Ltd. vs Ombir & Ors. on 11 October, 2017
$~R-307
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th October, 2017
+ MAC APPEAL 202/2011 and CM No.4720/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. J.P.N. Shahi and Ms.
Komal Dhingra, Advocate
versus
OMBIR & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The claim case (MACT 365/2006) instituted on 14.07.2006 by
the first and second respondents (collectively, the claimants) claimed
compensation under Section 166 of the Motor Vehicles Act, 1988 on
account of death of their bachelor son, Amit Kumar, then aged 27
years, in a motor vehicular accident that had occurred on 03.06.2006
due to the negligent driving of a truck bearing registration no.UP-13L-
5342 admittedly insured against third party risk with the appellant /
insurance company (insurer) for the period in question.
2. The Motor Accident Claims Tribunal (Tribunal) after holding
inquiry, by judgment dated 31.07.2010, awarded compensation in the
total sum of Rs.17,85,000/- and directed the insurer (appellant) to pay
the same, the said amount inclusive of Rs.17,55,000/- towards loss of
dependency and Rs.10,000/- each under the heads of loss to estate,
loss of love and affection and funeral charges respectively.
3. The insurer by the appeal at hand questions the calculation of
loss of dependency on the ground that the proof of income was not
clear and there was no evidence showing progressive rise in income
and therefore, the element of future prospects of increase in income to
the extent of 50% should not have been factored in.
4. The claimants having been served with the notice, the appeal
was admitted and put in the category of regulars as per order dated
06.09.2012. When it is taken up for hearing, there is no appearance on
their behalf. The appeal has been considered on the basis of
submissions made by the counsel for the appellant and by perusal of
the record.
5. It appears the claimants had submitted before the tribunal that
the deceased was working as a contractor supplying labour to M/s.
Dev Motors Pvt. Ltd., his earnings claimed to be in the region of
Rs.50,000/- p.m. However, no clear proof of any such earnings was
adduced, it having been conceded that the deceased would not file the
income tax returns nor maintain any other records. The only reliance
placed was on form no.16A that had been issued by the company with
which the deceased had business connections, it showing that during
the assessment year 2005-2006, the said company had paid to him (the
deceased) total amount of Rs.15,44,600/- which obviously would
include the labour charges. It is on that basis that the tribunal
concluded the income of the deceased to be in the region of
Rs.15,000/- p.m. But, for calculating the loss of dependency, it
proceeded to add the element of future prospects of increase in
income to the extent of 50%. It is this part of the calculation which is
challenged.
6. 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.
7. 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.
8. The submissions of the insurance company must be accepted as
there was no clear proof of regular income or progressive rise therein.
The element of future prospects has to be kept out. The tribunal had
made deduction of 50% towards personal and living expenses and
going by the age of the claimant, applied the multiplier of 13. The
loss of dependency is re-calculated as [Rs.15,000/2 x 12 x 13]
Rs.11,70,000/-.
9. It is, however, also noted that the non-pecuniary damages
awarded by the tribunal as indeed the rate of interest (8% p.a.) are
deficient.
10. Following the rulings in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC
150, an amount of Rs.1,00,000/- is added towards loss of love and
affection and Rs.25,000/- each towards loss of estate and funeral
expenses. Thus, the total compensation in the case comes to
[Rs.11,70,000/- + Rs.1,00,000/- + Rs.25,000/- + Rs.25,000/-]
Rs.13,20,000/- [Rupees Thirteen Lakh and twenty thousand only).
11. The award is modified accordingly.
12. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum (nine percent) 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.]
13. The tribunal had apportioned the award equally amongst the
two claimants. The said dispensation shall continue to govern the
modified award.
14. The insurance company is directed to satisfy the modified
award by requisite deposit with the tribunal within 30 days and the
same shall be released to the claimants.
15. The statutory amount deposited shall be refunded to the
insurance company after proof is shown of the award having been
satisfied.
16. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
OCTOBER 11, 2017
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