Delhi High Court
The Oriental Ins. Co. Ltd. vs Neelam & Ors. on 7 September, 2017
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 7th September, 2017
+ MAC APPEAL No. 196/2016
THE ORIENTAL INS. CO. LTD. .... Appellant
Through: Mr. A.K. Soni, Adv.
versus
NEELAM & ORS. ..... Respondents
Through: Mr. Kunwar Pal Singh, Adv. for
R-1 to 5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Virender Singh, employed as a driver with Uttar Pradesh State
Road Transport Corporation (UPSRTC), suffered death in motor
vehicular accident that occurred on 29.06.2011 due to negligent
driving of truck bearing registration no. UP 81Y 9653, admittedly
insured against third party risk with the appellant insurance company.
His wife and other members of the family, dependent upon him, they
being first to fifth respondents (collectively, the claimants) instituted
accident claim case (MACT no. 303/2012) on 25.08.2012 seeking
compensation. The tribunal upheld the case for compensation on fault
liability and awarded Rs. 27,10,000/- (Rupees Twenty Seven Lakhs
Ten Thousand), directing the appellant to pay with interest @ nine per
cent (9%) per annum, the said amount inclusive of Rs. 3,00,000/-
towards loss of love & affection (children + parents), Rs. 1,00,000/-
each towards loss of consortium and loss to estate and Rs. 50,000/-
towards funeral expenses, the balance being due to loss of
dependency.
2. The insurer by the appeal at hand questions the inclusion of
element of future prospects over and above the income assessed by
drawing an average and also submits grievance about the non-
pecuniary heads of damages arguing that the same are excessive.
3. It is noted that the claimants had led evidence by examining
Vijay Pal (PW-4) that the deceased was employed with UPSRTC
under kilometer scheme on contract basis, the terms and conditions
indicative of his wages being connected to the performance. The
salary record (Ex.PW-4/8 and 4/9) revealed that his wages would vary
from month to month depending on the performance. It is against this
backdrop that the tribunal drew an average and assessed the income at
Rs. 10,000/- per month. Though the engagement may be on contract
basis, it cannot be ignored that the employment was more or less
regular in the sense it was to continue with UPSRTC on wages, it
having been determined, the progressive rise in income being inherent
in such contract. In these circumstances, the argument of the
insurance company against the inclusion of future prospects is
repelled.
4. Having regard to the dispensation by this Court in cases relating
to the accidents of same vintage, award under the non-pecuniary heads
of damages seems to be inappropriate, excessive under some heads
and deficient in others. To bring about consistency, it is directed that
the claimants will be entitled to Rs. 1,50,000/- each under the heads of
loss of love & affection and loss of consortium and Rs. 50,000/- each
under the heads of loss to estate and funeral expenses. This would
mean the award is to be reduced by Rs. 1,50,000/-. Thus, the award is
modified as (27,10,000- 1,50,000) Rs. 25,60,000/-(Rupees twenty five
lakhs sixty thousand only). Needless to add, it shall carry interest as
levied by the tribunal.
5. By order dated 29.02.2016, the insurance company had been
directed to deposit the entire awarded amount with upto date interest
with the tribunal within the period specified and out of such deposit
fifty per cent (50%) was allowed to be released to the claimants. The
balance in terms of the modification ordered above, shall now be
released to the claimants, refunding the excess with corresponding
interest to the insurance company.
6. The statutory deposit shall be refunded.
7. Dasti.
R.K.GAUBA, J.
SEPTEMBER 07, 2017
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