Delhi High Court
New India Assurance Co. Ltd. vs Sheela Devi & Ors. on 27 October, 2017
$~R-377 & 378
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th October, 2017
+ MAC APPEAL 704/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Priyadarshi Acharya for Mr
Sameer Nandwani, Advocate
versus
SHEELA DEVI & ORS. ..... Respondents
Through: None
+ MAC APPEAL 1209/2012
SHEELA DEVI & ORS. ..... Appellants
Through: None
versus
MAHENDER SINGH & ORS. ..... Respondents
Through: Mr. Priyadarshi Acharya for Mr
Sameer Nandwani, Advocate
for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rajender Kumar Moura, aged 42 years, working as Post Master
in the Department of Posts of the Government of India, suffered
injuries in a motor vehicular accident that had occurred on 01.09.2007,
while travelling as a passenger in three wheeler scooter bearing
registration no.DL-1RG-4557 (TSR), it having collided against truck
bearing registration no.HR-38K-6157 (the truck) and died in the
consequence. His wife and five members of the family dependent on
him, they being appellants in MACA 1209/2012 (collectively, the
claimants) instituted accident claim case (MACT suit no.24/2009) on
13.09.2007 which was decided by judgment dated 09.05.2011
returning a finding that the accident had occurred due to the negligent
driving of the truck. The truck was admittedly insured against third
party risk for the period in question with New India Assurance
Company Ltd. / appellant in MACA 704/2011 (insurer), it having been
held liable to pay the compensation which was determined in the total
sum of Rs.15,08,468/-, it inclusive of an amount of Rs.12,73,468/- on
account of the loss of dependency.
2. The insurer of the truck, by its appeal, submits that since there
was evidence to show that the TSR driver was also at fault, the
liability should have been apportioned and fastened upon him too.
The claimants, on the other hand, by their appeal submit that the
award of compensation is inadequate.
3. Both appeals were admitted and put in the list of 'Regulars', to
come up on their own turn. They were taken up for exploring the
possibility of settlement through Lok Adalat on some dates but with no
fruitful result. When they are called out for hearing, there is no
appearance on behalf of the claimants. The matters have been
considered with the assistance of the counsel for the insurer and upon
perusal of the tribunal's record.
4. The plea of the insurer about apportionment of liability must be
rejected for the simple reason that even if the TSR driver were to be
also held negligent, it would be a case of composite liability and, thus,
the choice of the claimants cannot be defeated, particularly when the
insurer had made no effort to implead the TSR driver or owner or
insurer at the time of inquiry before the tribunal.
5. On the question of computation of compensation, the grievance
of the claimants appears to be correct. The tribunal has gone by the
salary of Rs.7,775/- earned by the deceased as on 01.08.2007. This is
against the record. The witness from the department had proved (Ex.
PW2/3) that the salary of the deceased would have reached the level of
Rs.11,459/- with effect from 01.09.2007 upon acceptance of the
recommendation of the Sixth Central Pay Commission which were
implemented later upon they having been accepted by the Government
of India. In these circumstances, the loss of dependency will have to
be made assuming the income of the deceased at Rs.11,459/- though
after deducting one-fourth on account of personal and living expenses,
with addition of the element of 30% towards future prospects of
increase and on the multiplier of 14.
6. Thus calculated, the loss of dependency comes to [Rs.11,459/- x
130/100 x 3 / 4 x 12 x 14] Rs.18,76,984.20, rounded off to
Rs.18,77,000/- (Rupees Eighteen Lakh and seventy seven thousand
only).
7. Adding the other components of compensation awarded by the
tribunal, the total compensation comes to [Rs.18,77,000/- +
Rs.1,50,000/- + Rs.30,000/- + Rs.15,000/- + Rs.40,000/-]
Rs.21,12,000/- (Rupees Twenty one Lakh and twelve thousand only).
The award is modified accordingly. It shall carry interest as levied by
the tribunal.
8. By order dated 02.08.2011 on MACA 704/2011, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest with the Registrar General, which was directed to
be kept in fixed deposit receipt. By order dated 28.05.2012, fifty
percent (50%) of the said amount was permitted to be released to the
claimants. Since the award has been modified, the entire amount lying
in balance with accrued interest shall also now be released to the
claimants. It is directed that the entire enhanced portion of the award
alongwith corresponding interest to be deposited by insurer within 30
days with the tribunal shall fall to the share of Sheela Devi (widow)
only, it to be released to her in the form of fixed deposit receipt taken
out form a Nationalized bank in her name for a period of seven years
with right to draw periodic interest.
9. The statutory deposit made by the insurance company shall be
refunded after proof is furnished of the modified award having been
satisfied.
10. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 27, 2017
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