Delhi High Court
New India Assurance Co Ltd vs Shambhu & Ors on 12 October, 2017
$~18 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th October, 2017
+ MAC.APP. 491/2010
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
SHAMBHU & ORS ..... Respondents
Through: Mr. S.N.Parashar, Adv. for R-1
to R-3
Mr. Kameshwar Singh, Adv.
with Mr. Ravindra Kumar
Singh, Adv. for R-4
+ MAC.APP. 25/2011
KESHAV SINGH ..... Appellant
Through: Mr. Kameshwar Singh, Adv.
with Mr. Ravindra Kumar
Singh, Adv.
versus
SHAMBHU & ORS ..... Respondents
Through: Mr. Sameer Nandwani, Adv.
for R-2
Mr.S.N.Parashar, Adv. for R-1
& R-3
MAC Appeal No. 491/2010 & conn. Page 1 of 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rajinder Singh @ Rajan, then 34 years old, a bachelor, living
with his brother (the first respondent in these appeals) died in a motor
vehicular accident that had occurred on 12.02.2006 due to the
negligent driving of Truck bearing No. UP-78-AT-2586 which was
admittedly insured against third party risk with New India Assurance
Company Ltd. (appellant in MAC APP. 491/2010). The truck was
registered in the name of Keshav Singh (Appellant in the MAC APP.
25/2011). The accident claim case was instituted on 20.03.2006 by the
first respondent in which two appellants herein were impleaded as
party respondents. Later the claimant also impleaded his two married
sisters they being Ms. Lilam and Ms. Manor Devi who are
respondents in these appeals in addition to Mr. Anil Kumar, the driver
of the truck at the relevant point of time.
2. On the basis of the inquiry held, the tribunal, by judgment dated
26.05.2010, upheld the claim that the death had occurred due to the
negligent driving of the truck. It awarded compensation in the sum of
Rs. 6,58,032/-, the said amount inclusive of loss of dependency in the
sum of Rs. 6,28,032/- besides Rs. 10,000/- each towards loss of love
and affection, loss of estate and funeral expenses. The insurer was
directed to pay the said amount with interest 7.5% p.a. However, its
plea about breach of terms and condition of the insurance policy
having been accepted on the basis of the evidence led, primarily on the
ground that there was no permit shown to be existing on the date in
question, it was granted recovery rights against the owner of the
offending vehicle who is the appellant in MAC APP. 25/2011.
3. The insurer, by its appeal (MAC APP. 491/2010), has
questioned the award on the ground that since the deceased was a
bachelor, the claim being for and on behalf of the siblings, no
dependency loss was required to be compensated, the only permissible
award being towards loss to estate. The registered owner of the
offending vehicle, on the other hand, has also raised similar issues
about the dependency loss having being improperly granted.
4. Having heard the learned counsel from on all sides, this court
finds substance in the exception taken to the award inclusive of one
under the head of loss of dependency. Against the above backdrop of
facts loss of estate primarily should have been included though with
non-pecuniary damages under the head of loss of love and affection
and funeral expenses added.
5. The tribunal concluded the notional income of the deceased at
Rs. 4906/-. The loss to estate in the present case will have to be
assessed taking it to be a bachelor's death, thus, to the extent of 50%.
Against the age of 34 years the multiplier of 16 is applied. The loss of
estate is recomputed as (4906/2 x12 x16) Rs. 4,70,976/- rounded off to
Rs. 4,71,000 (Rupees four lakhs seventy one thousand only).
6. It is noted that the non pecuniary damages awarded under the
heads of loss of love and affection and funeral expenses are deficient.
Following the rulings in Rajesh & Ors. v. Rajbir Singh & Ors., (2013)
9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
the award of Rs. 1,00,000/- is granted towards loss of love and
affection and Rs. 25,000/- on the account of funeral expenses. Thus,
the total compensation payable in the case is computed as (Rs.
4,71,000/- + Rs. 1,00,000/- + Rs. 25,000/-) Rs. 5,96,000/- (Rupees
Five Lakh Ninety Six Thousand only).
7. Following the consistent view taken by this Court [see judgment
dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd
v. Sangeeta Devi & Ors.], the rate of interest is increased to 9% (nine
per cent) per annum from the date of filing of the petition till
realization.
8. The award is modified accordingly.
9. By the order dated 27.08.2010 in MAC appeal No.491/2010, the
insurance company had been directed to deposit the entire awarded
amount and out of such deposit 30% was allowed to be released to the
claimants, the balance retained. The registry shall calculate the amount
now payable to the claimants in terms of the modified award and
release the remainder from out of the balance held back refunding the
excess, if any, to the insurance company. In case there is any
deficiency in the deposit, the insurance company will be obliged to
pay the balance with requisite deposit with the tribunal within 30 days.
10. Needless to add, the recovery right already granted to the
insurance company shall remain undisturbed. The registered owner of
the vehicle (appellant in MAC APP. 25/2011) shall pay the same
forthwith to the insurance company and in case of deficiency
insurance company will have the right to recover the same by
appropriate proceedings before the Tribunal.
11. The statutory amount deposited by the insurance company in its
appeal shall be applied first in case of deficiency if any in the
deposited award and the excess refunded. The statutory amount
deposited by the registered owner in his appeal, however, shall be
made over to the insurance company towards part satisfaction of its
recovery rights.
12. Both appeals are disposed of in the above terms.
R.K.GAUBA, J.
OCTOBER 12, 2017
rv
