Delhi High Court
Tata Aig General Insurance Co. Ltd vs Babu Lenka & Ors. on 12 September, 2017
$~R-189 & 190
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th September, 2017
+ MAC APPEAL NO.163/2010 and CM Nos.4802/2010 &
14562/2010
IFFCO TOKIO GENERAL INS. CO.LTD. ..... Appellant
Through: Ms. Harsh Lata for Ms. Shantha
Devi Raman, Advocate
versus
BABU LENKA & ORS. ..... Respondents
Through: Mr. Nitinjya Chaudhary, Adv.
for R-1 & 2
+ MAC APPEAL NO.169/2010 and CM 4957/2010
TATA AIG GENERAL INSURANCE CO. LTD. .... Appellant
Through: Ms. Harsh Lata for Ms. Shantha
Devi Raman, Advocate
versus
BABU LENKA & ORS. ..... Respondents
Through: Mr. Nitinjya Chaudhry, Adv.
for R-1 & 2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Pradeep Kumar Lenka, a bachelor, then aged about 26 yrs, son
of the first and second respondents (collectively, the claimants)
suffered injuries in a motor vehicular accident that occurred on
28.05.2006 due to the negligent driving of two vehicles, one being
Santro Car bearing registration no.DL-3C-AG-1528 (Santro car) and,
the other, Honda City car bearing registration no.DL-9CG-2785
(Honda City car). He remained under treatment in hospital but died
due to the injuries suffered on 17.08.2016. The accident claim case
(petition no.409/2006) instituted by his parents on 25.09.2006 was
clubbed with another accident claim case arising out the same accident
and was subjected to inquiry and resulted in judgment dated
04.01.2010 whereby the drivers of both the said cars impleaded as
respondents in inquiry, were held liable, equally responsible and
accountable for the accident.
2. The Motor Accident Claims Tribunal (Tribunal) awarded
compensation for the death of Pradeep Kumar in the total sum of
Rs.11,82,905/- (said to be erroneous calculation), directing the insurer
of each vehicle to pay the same in equal proportions, calculating it
thus :-
On account of medical expenses Rs.45,000/-
Pain and sufferings Rs.1,00,000/-
Loss of dependency Rs.10,26,144/-
Loss of income Rs.12,093/-
Loss of amenities Rs.15,000/-
On account of conveyance Rs.15,000/-
Loss of love and affection Rs.50,000/-
Loss of estate Rs.10,000/-
Funeral expenses Rs.10,000/-
TOTAL Rs.11,82,905/-
3. The insurer of each car having filed these appeals presses the
same assailing the computation of compensation pointing out,
amongst others, that the awards under the heads of loss of amenities
and pain and suffering were not called for, given the fact that the case
was being treated as one of fatal accident, it also being submitted that
the loss of dependency calculated by the tribunal was incorrect since it
assumed the income, in absence of better proof, with the help of
minimum wages for a graduate, there being no proof of such
educational qualification of the deceased, the element of future
prospects of increase also having been taken into consideration
wrongly.
4. The learned counsel for the claimants fairly conceded that the
deceased was not a graduate. Given the fact that there is proof on
record that he was matriculate, the minimum wages of Rs.3,719/-
applicable to the case of a matriculate during the relevant period are
taken as the benchmark.
5. 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 views,
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.
6. 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.
7. Since there was no clear proof of the employment or of the
income of the deceased, no element of future prospects deserves to be
added. After deducting one-half towards personal and living expenses
and applying the multiplier of 14 correctly chosen by the tribunal, the
loss of dependency is re-calculated as [Rs.3,719/2 x12 x 14]
Rs.3,12,396/-, rounded off to Rs.3,13,000/- [Rupees Three Lakh and
thirteen thousand only].
8. While the awards under the heads of pain and suffering and loss
of amenities cannot be endorsed in as much as the victim having died
such personal compensation would not survive, it is found that the
awards under the non-pecuniary heads of loss of love and affection
and loss to estate and funeral expenses are deficient. Following the
rulings in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Shashikala V. Gangalakshmamma (2015) 9 SCC 150, awards of
Rs.1,00,000/- towards loss of love and affection and Rs.25,000/- each
towards loss of estate and funeral expenses are added.
9. Putting together, the other heads of damages awarded by the
tribunal, the total compensation in the case comes to [Rs.45,000/- +
Rs.3,13,000/- + Rs.12,093/-+Rs.15,000/- + Rs.1,00,000/- +
Rs.25,000/- + Rs.25,000/-] Rs.5,35,093/-, rounded off to Rs.5,36,000/-
(Rupees Five Lakh and thirty six thousand only).
10. Following the consistent view taken by this court, the rate of
interest is increased to 9% (nine percent) p.a. from the date of filing of
the petition till realization. [see judgment dated 22.02.2016 in
MAC.APP. 165/2011, Oriental Insurance Co Ltd v. Sangeeta Devi &
Ors.].
11. By order dated 16.03.2010 on MACA 163/2010, each of the
two insurance companies were directed to deposit Rs.3,00,000/- each
in UCO Bank, Delhi High Court Branch, New Delhi. By identical
orders passed on 26.05.2010, in the two appeals, 50% (fifty percent)
of the amount thus deposited was allowed to be released to the
claimants, balance kept in fixed deposit. The Registry shall calculate
the amounts payable to the claimants in terms of the modification
ordered above and release it accordingly refunding the excess in
deposit, if any, to the respective insurance companies. Conversely, if
there is any deficiency, the insurance companies will be obliged to
deposit the balance of their liability with the tribunal within 30 days
making it available to be released to the claimants.
12. Statutory deposits shall be refunded after proof is shown of the
awards having been satisfied.
13. Both appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
SEPTEMBER 12, 2017
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