Delhi High Court
National Insurance Co. Ltd. vs Ombati & Ors. on 26 October, 2017
$~ 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 26th October, 2017
+ MAC APP. 191/2017
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Rakhi Dubey, Adv.
versus
OMBATI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. Amit @ Bittoo, aged 38 years, died due to the injuries suffered
in a motor vehicular accident that occurred on 06.03.2013 due to the
negligent driving of a bus bearing registration no.UP-17-6780
admittedly insured against third party risk with the appellant /
insurance company for the period in question. Two accident claim
cases came to be filed before the Motor Accident Claims Tribunal
(Tribunal), one (MACT 97/2013) for and on behalf of the parents and
the minor son, aged 11 years of the deceased, and the other (MACT
120/2013) by the wife of the deceased, adding the said son as co-
petitioner. While in the first case the widow Meenu was shown in the
array of respondents, in the second case, the parents were included
amongst the respondents. In each case the driver, owner and insurer of
the offending vehicle were the prime respondents. The Tribunal
clubbed both the cases and decided them by a common judgment
dated 06.01.2017. On the basis of evidence led, a finding was returned
that the death had occurred due to the accident which had been caused
on account of the negligent driving of the bus. The tribunal
determined compensation in the total sum of Rs.22,67,785/- and
fastened the liability on the insurer to pay with interest at 9% p.a.
apportioning the award amongst the four claimants by specifying the
ratio.
2. The insurer, by the appeal at hand, questions the calculation of
loss of dependency on the ground the tribunal has fallen into error by
adding the element of future prospects of increase against the
backdrop of the facts wherein the claimants were unable to show any
regular gainful employment, much less any progressive rise in income.
3. From the record of the tribunal, it is noted that the parents had
claimed that the deceased was engaged in a business. They produced
income tax return (ITR) for the year 2007-2008 (Ex. PW2/A) and also
proved that the deceased was a graduate (PW1/5). The claimants,
however, were unable to muster any clear proof of the nature of work
in which the deceased was engaged much less of his earnings around
the time of the death. In these circumstances, the tribunal felt
constrained to go by the minimum wages payable to a graduate
(Rs.9594/-). It added the element of future prospects of increase to the
extent of 50% to calculate the loss of dependency.
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. The learned counsel appearing for the parents of the deceased
(first and second respondents) and for the wife and minor son of the
deceased (third and fourth respondents) have been asked at the hearing
as to whether they are in a position to muster better proof of gainful
employment of the deceased or of his earnings. They, however,
expressed inability to adduce any such evidence and expressed
satisfaction with the calculation on the basis of minimum wages.
7. In the above facts and circumstances where there is no clear
proof of gainful employment of the deceased much less that of his
earnings and there being no clear proof of progressive rise in income,
the element of future prospects is kept out. Applying the multiplier of
15 and making a deduction of one-fourth towards personal expenses,
loss of dependency is recalculated as [Rs.9594 x ¾ x 12 x15]
Rs.12,95,190, rounded off to Rs. 12,96,000 (Rupees twelve lacs and
ninety six thousand only).
8. It is noted that the award under the non-pecuniary heads of
damages are not in sync with the dispensation that is generally made
in such like cases of accident of same vintage. Following the ruling in
Shriram General Insurance Co Ltd v. Usha, MAC.APP.No.160/2015,
decided on 05.05.2016 awards of Rs. 1,50,000 each towards loss of
love and affection and loss of consortium and Rs. 50,000 each towards
loss to estate and funeral expenses are added.
9. Thus, compensation in the case comes to (Rs.
12,96,000+Rs.1,50,000+ Rs.1,50,000+ Rs.50,000+ Rs.50,000) Rs.
16,96,000 (Rupees Sixteen lacs and Ninety six thousand only). The
award is modified accordingly.
10. In the appeal, the insurer has also taken exception to the levy of
interest at the rate of nine per cent (9%) per annum. Such rate of
interest is in accord with the view consistently taken by this Court.
[see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental
Insurance Co Ltd v. Sangeeta Devi & Ors.]. Therefore, there is no
case made out for interference on that score.
11. The apportionment of the award as directed by the tribunal shall
be followed.
12. By order dated 28.02.2017, the insurance company had been
directed to deposit the entire awarded amount with interest with the
tribunal within four weeks as a pre-condition to stay against execution.
The tribunal shall now calculate the amount payable to the claimants
in terms of the modification ordered above and after releasing the
same refund the excess to the insurance company.
13. Statutory amount shall also be refunded.
14. This disposes of the appeal and the applications filed therewith.
R.K.GAUBA, J.
October 26, 2017
umang
