Delhi High Court
United India Ins. Co. Ltd. vs Kavita Sharma & Ors. on 11 September, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th September, 2017
+ MAC.APP. 325/2016 & CM No. 31952/2017 (cross-
objections)
UNITED INDIA INS. CO. LTD. .... Appellant
Through: Mr. Animesh Sinha, Adv.
versus
KAVITA SHARMA & ORS. ..... Respondents
Through: Mr. Manish Maini, Adv. for R-
1 to 3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Dinesh Kumar, then aged 39 years, employed as security guard
with a private security agency "Sky Securities", suffered injuries in
motor vehicular accident that occurred on 26.02.2014 at about 06:10
AM, due to negligent driving of bus bearing registration no. DL 1PC
7199, admittedly insured against third party risk with the appellant
insurance company for the period in question and died in the
consequence. Accident claim case (MACP 107/2014) instituted on
05.04.2014 by his wife and two children, they being first to third
respondents (the claimants), was decided by the tribunal after inquiry,
by judgment dated 14.01.2016, awarding compensation in the sum of
Rs. 23,82,760/-, the liability having been fastened on the insurer to
pay the same with interest @ twelve per cent (12%) per annum, the
said amount inclusive of Rs. 19,07,760/- towards loss of dependency.
2. The insurer is in appeal and submits that though the engagement
of the deceased with the private security agency was proved through
the evidence of Nilofar Khan (PW-2) in the course of which salary
slips for the period May, 2012 to March, 2014 was brought on record,
the tribunal has accepted salary of Rs. 15,898/- as the benchmark, it
being based on the salary slip for the month February, 2014 (Ex.PW-
2/2), ignoring the fact that the salary included overtime allowance
which varied from month to month. The submission of the insurer is
that instead of taking the last payment as the benchmark, average
should be drawn.
3. It is noted that the basic pay and certain allowances including
house rent allowance and washing allowance were constant, they
adding up to Rs. 12,119, the variation in the payments on wages being
on account of overtime allowance. With the consent of both sides, the
average (Rs. 1312 + 1368 + 2736 + 2052 + 3420 + 4788 = 15676) of
six months preceding the date of death has been taken as Rs. 2612.60,
rounded off to Rs. 2,613/- per month towards overtime allowance.
Since such allowance was a regular income of the deceased, the total
earnings on which the loss of dependency can be fairly computed is
calculated at (12,119 + 2,613) Rs. 14,732/-.
4. The claimants have also filed cross-objections (CM
No.31952/2017) which are pressed to point out that the tribunal
ignored the need to factor in the element of future prospects of
increase. Indeed, given the proof of engagement in the employment as
security guard and the wages paid over almost two years, the element
of future prospects deserves to be added. Since the deceased was 39
years old such factor will have to be to the extent of 50% (fifty per
cent).
5. The tribunal had deducted 1/3rd towards personal and living
expenses and applied the multiplier of 15 in which regard there is no
dispute. The loss of dependency is thus, recomputed as (14732 x 150 ÷
100 x 2 ÷ 3 x 12 x 15) Rs. 26,51,760/-, rounded off to Rs. 26,52,000/-
(Rupees twenty six lakhs fifty two thousand only).
6. It is noted that the non-pecuniary awards are deficient to some
extent. Therefore, following the ruling in 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 towards loss of love &
affection and towards loss of consortium and Rs.50,000/- each
towards loss of estate and funeral expense are to be added.
7. Hence, the total compensation payable in the case comes to
(26,52,000 + 1,50,000/- + 1,50,000/- + 50,000/- + 50,000/-)
Rs.30,52,000/- (Rupees thirty lakhs and fifty two thousand only).
8. The tribunal has not given any special reasons as to why the
case merited levy of interest @ 12% (twelve per cent) per annum
which is higher than ordinary. Following the consistent view taken by
this Court [see judgment dated 22.02.2016 in MAC.APP. 165/2011
Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.], the rate of
interest is reduced to 9% (nine per cent) per annum from the date of
filing of the petition till realization.
9. By order dated 22.04.2016, the insurance company had been
directed to deposit the entire awarded amount with interest @ nine per
cent (9%) per annum and out of such deposit 50% (fifty per cent) was
allowed to be released. The tribunal shall now calculate afresh the
balance of the amount payable to the claimants and release the same
availing the remainder, it being the obligation of the insurance
company to satisfy the balance of its liability by requisite deposit with
the tribunal within thirty days.
10. This disposes of the appeal and the cross objections.
11. The statutory deposit shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 11, 2017
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