Delhi High Court
Icici Lombard General Ins. Co Ltd vs Johri Lal & Ors on 4 September, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04th September, 2017
+ MAC.APP. 230/2016 and CM 8897/2016
ICICI LOMBARD GENERAL INS. CO LTD .... Appellant
Through: Mr. Garud M.V., Advocate
versus
JOHRI LAL & ORS ..... Respondents
Through: Mr. Naushad A. Khan, Adv.for R-
1 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ram Bai @ Rama Bai, widowed mother of the first to fifth
respondents (collectively, the claimants) died in a motor vehicular
accident that occurred on 09.06.2010 due to negligent driving of a
motorcycle bearing registration no.DL-8SAS-7687, admittedly insured
against third party risk with the appellant / insurance company
(insurer). The accident claim case (suit no.379/2010), instituted by the
said respondents (claimants) on 14.07.2010 resulted in an award of
compensation in the sum of Rs.4,77,514/- given by the tribunal by its
judgment dated 15.01.2016, the liability having been fastened on the
insurer to pay with interest at the rate of nine per cent (9%) per
annum. At the same time on the basis of finding that the driver of the
offending vehicle, i.e., sixth respondent (Kamal Kumar) was not in
possession of a valid and effective driving licence at the relevant point
of time, recovery rights have been granted against him in favour of the
insured.
2. The insurer is in appeal questioning the computation of the
award which includes Rs.3,32,514/- calculated towards loss of
dependency. It is the argument of the insurer that the age of the
deceased was wrongly assumed to be 65 years, which resulted in
erroneous adoption of the multiplier of 7 and that the first claimant
(first respondent) while appearing in the evidence as a witness (PW-1)
had admitted that none of the claimants was dependent financially on
the earning of the deceased mother. The insurer places reliance on the
decision of a learned single judge of this court in Keith Roe Vs.
Prashant Sagar and Ors., 2011 ACJ 1734 which followed the
decision of a division bench of Karnataka High Court reported as A.
Manavalagan vs. A. Krishnamurthy & Ors., 1(2005) ACC 304 (DB) to
contend that in such a case the award under the head of loss of
dependency was impermissible and instead the compensation should
have been computed assuming it to be a case of loss of estate.
3. Having heard the learned counsel for the appellant and the
claimants and having gone through the tribunal's record, this court
finds merit in the contention of the insurer with regard to the finding
on the age of the deceased. PW-1 had testified that his mother was 65
years old at the time of accident. This obviously could not be the
correct age in as much as he gave his own age as 60 years on
27.02.2015 which would render him a person aged about 55 years
when the accident occurred. In these circumstances, it is obvious that
the deceased was above the age of 65 years, and therefore, the
multiplier of 5 should have been adopted for calculating the
compensation payable.
4. The exception taken by the insurer to the award under the head
of loss of dependency also must be accepted. Indeed, none of the
claimants were financially dependent on the deceased mother (who
was a widow), all of them being well settled in their respective lives.
At the same time, however, it cannot be ignored that the loss of estate
is required to be properly computed, the lumpsum award of
Rs.20,000/- under the said head being inappropriate.
5. Having regard to the composition of the family, the status of the
mother as the head, she also being an earning hand, the calculation of
loss of estate deserves to be on the basis of assumption that she would
be saving 50% of her earnings for the benefit of the family. By these
calculations, the loss to estate is calculated as [Rs.5,278/2 x 12 x 5]
Rs.1,58,340/-, rounded off to Rs.1,59,000/-. (Rupees One Lakh and
fifty nine thousand only).
6. Having regard to the date of the accident, the awards under the
heads of loss of love and affection and funeral expenses are found
inadequate and, therefore, the same are increased to Rs.1,50,000/- and
Rs.50,000/- respectively.
7. Thus, the total compensation in the case is computed as
[Rs.1,59,000/- + Rs.1,50,000/- + Rs.50,000/-] Rs.3,59,000/- (Rupees
Three Lakh and Fifty nine thousand only). The award is modified
accordingly. Needless to add, it shall carry interest as levied by the
tribunal.
8. By order dated 11.03.2016, the insurance company had been
directed to deposit the entire awarded amount with interest which was
directed to be kept in fixed deposit receipt. The Tribunal shall release,
from out of such deposit, the amount payable to the claimants in terms
of the modified award, refunding the excess with corresponding
interest to the appellant.
9. The statutory amount shall also be refunded.
10. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
SEPTEMBER 04, 2017
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