Delhi High Court
The New India Assurance Co. Ltd. vs Lakshmi Devi & Ors. on 7 September, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 7th September, 2017
+ MAC APPEAL No. 660/2015
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Ms. Awantika Manohar, Adv.
versus
LAKSHMI DEVI & ORS. ..... Respondents
Through: Mr. Arun Srivastava, Adv. for
R-1 to 3.
Mr. P.K. Srivastava, Adv. for
R-8.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Jitender Singh @ Jitender Kumar, 22 and half years old, died as
a result of injuries suffered in motor vehicular accident that occurred
on 03.01.2012 at about 9:30 PM due to negligent driving of Maruti
van bearing registration no. DL 7CB 1709, 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
third respondents (collectively, the claimants), instituted accident
claim case (case no. 89/2012) on 30.01.2012 seeking compensation.
In the claim proceedings besides Vineet @ Mantu, the driver of the
offending vehicle, two persons were shown in the fray as the owner
(they being Satpal in whose name the car is registered and Subh Ram)
besides the appellant as the insurer. In addition, Bimlesh Devi @
Vimlesh Devi described as the person who statedly had purchased the
car from the registered owner was also impleaded as the sixth
respondent before the tribunal. It may be added that Manu Devi
described as step mother of the deceased was also impleaded as
proforma respondent no.5 before the tribunal.
2. The tribunal, after inquiry, by judgment dated 20.04.2015,
upheld the claim for compensation on the basis of finding that the car
driver was negligent. The tribunal computed the compensation in the
sum of Rs. 22,06,216/- and directed the insurer to pay with interest @
nine per cent (9%) per annum.
3. The insurer, by the appeal at hand, questions the computation of
compensation on the ground that the factor of future prospects of
increase was wrongly added, the income of the deceased having been
calculated on the basis of minimum wages of a skilled worker
(Rs.8,112). It also submits that since it had been pleaded by Satpal,
registered owner of the car (fifth respondent herein) that he had sold
the car to Bimlesh Devi @ Vimlesh Devi (eighth respondent herein) in
2011, the insurer has no liability to indemnify. Reference is also made
at the same time to the pleadings of eighth respondent before the
tribunal denying such purchase to the effect that the car was owned by
Satpal (fifth respondent) and Subhram (sixth respondent).
4. The plea of the insurance company for exoneration only on the
basis of pleadings to above effect by the registered owner regarding
sale of the car in 2011 to a third person cannot be accepted. No
evidence was led to affirm the said transaction of sale. The car
continues to be registered in the name of the same person and, thus,
the insurance company cannot seek exoneration.
5. The other contention about the compensation, however,
deserves to be accepted.
6. 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 0views,
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.
7. 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.
8. Though it was claimed that the deceased was employed as
Tractor driver, the said fact was not proved by any evidence. In
absence of any clear proof of employment and/or its terms, the
element of future prospects has to be kept out. The tribunal wrongly
referred to multiplier of 17 but actually applied the multiplier of 18
and, rightly so. The loss of dependency is, thus, calculated as (8112 x
3 ÷4 x 12 x 18) Rs. 13,14,144/-, rounded off to Rs. 13,15,000/-.
9. It is however, noted that the tribunal has awarded Rs. 1,00,000/-
each towards loss of consortium and loss of care and guidance, in
addition to Rs. 25,000/- towards funeral expenses and Rs. 10,000/-
towards loss of estate. Following the dispensation in
MAC.APP.No.160/2015 Shriram General Insurance Co Ltd v. Usha
decided by this court on 05.05.2016, non-pecuniary damages in the
sum of Rs. 1,50,000/- each is granted towards loss of love & affection
and towards loss of consortium and Rs. 50,000/- each towards loss of
estate and funeral expense.
10. Hence, the total compensation payable in the case comes to
(13,15,000 + 1,50,000 + 1,50,000 + 50,000 + 50,000) Rs. 17,15,000/-
(Rupees seventeen lakhs fifteen thousand only). The award is
modified accordingly. It shall carry interest as levied by the tribunal.
The apportionment of the award as determined by the tribunal would
remain undisturbed.
11. By order dated 19.08.2015, the insurance company had been
directed to deposit the entire awarded amount with the Registrar
General within the period specified and from out of such amount fifty
per cent (50%) was allowed to be released, the balance kept in fixed
deposit.
12. The registry shall now calculate the balance payable to the
respective claimants in terms of the modified award and release the
same from the balance retained, refunding the excess with
corresponding interest to the appellant insurance company.
13. The statutory amount shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 07,2017
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