Delhi High Court
United India Insurance Co Ltd vs Rajenderi Devi & Ors. on 18 September, 2017
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 18th September, 2017
+ MAC.APP. 87/2016 and CM APPL.3169/2016, 3171/2016
UNITED INDIA INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAJENDERI DEVI & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Yatish Kumar (born on 04.05.1984), concededly self-employed,
suffered injuries in a motor vehicular accident that occurred on
03.06.2014 due to negligent driving of bus bearing registration
No.UP-14-T-9050, admittedly insured against third party risk with the
appellant insurance company (insurer) for the period in question and
died in the consequence. The first to fourth respondents, being
members of the family dependent on him (collectively, the claimants),
instituted accident claim case (Suit No.515/2014) on 07.08.2015
seeking compensation. The tribunal, after inquiry, by the judgment
dated 27.08.2015, awarded compensation in the total sum of
Rs.26,83,000/-, calculating it thus:-
Sl.No. Head Amount in (Rs.)
1. Loss of dependency 24,48,000/-
2. Love and affection 1,00,000/-
3. Loss of consortium 1,00,000/-
4. Loss of estate 10,000/-
5. Funeral Expenses 25,000/-
Total 26,83,000/-
2. The liability to the extent of above mentioned amount with
interest @ nine per cent (9%) per annum was fastened on the insurer,
which has come up in the appeal questioning the calculation of loss of
dependency on the ground the income was over assessed and the
element of future prospects of income was wrongly added. While
defending the said calculations by the tribunal, the claimants submit
grievance that the non-pecuniary damages awarded were inadequate.
3. Having heard the arguments of the learned counsel for the
respective parties, the submissions of both sides are found to be
meriting acceptance.
4. Though in the evidence it was claimed that the deceased was
working as AC Mechanic, the documents showing his educational
qualification are found to relate to a diploma course in Agricultural
Engineering held by M.G. Polytechnic, Hathras, U.P. Apparently, the
said educational qualification has no connection whatsoever with the
job as AC mechanic. Even otherwise, no formal proof of engagement
as AC Mechanic was furnished. Given the nature of job (self-
employment) described by the claimants themselves, the oral claim,
not substantiated by any evidence, about the income being in the rage
of Rs.12,000/- could and should not have been accepted. The
minimum wages for a skilled worker (Rs.10,374/-) applicable at the
relevant point of time are, thus, adopted as the bench mark.
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 the deceased was admittedly self-employed, there being
no proof of any regular income, much less progressive rise therein, the
element of future prospects of increase is kept out.
8. The tribunal correctly chose the multiplier of 17 since the
deceased had just completed age of 30 years. It, however, committed
error by deducting personal and living expenses to the extent of one-
third, ignoring the fact that it was a case where four claimants had
come up to seek compensation, they including father, whose presence
seems to have been ignored in the calculation. The tribunal did not
bear in mind that the first claimant (the mother) while appearing as a
witness did testify that all the four persons were dependents. She even
clarified during cross-examination that her husband (father of the
deceased) would remain unwell. Since such evidence was not
impeached, the claim on account of the father could not have been
defeated. In this view, one-fourth is to be deducted towards personal
and living expenses.
9. Thus calculated, the loss of dependency works out to (10,374/-
x 3/4 x 12 x 17) Rs.15,87,222/- rounded off to Rs.15,88,000/- (Rupees
Fifteen Lakhs Eighty Eight Thousand Only).
10. Following the view taken in MAC.APP.No.160/2015 Shriram
General Insurance Co Ltd v. Usha decided by this court on
05.05.2016, non-pecuniary heads of 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 added. Hence, the total compensation payable in the case
comes to (Rs.15,88,000/- + 1,50,000/- + 1,50,000/- + 50,000/- +
50,000/-) Rs.19,88,000/- (Rupees Ninteen Lakhs Eighty Eight
Thousand Only).
11. The award is modified accordingly. It shall carry interest as
levied by the tribunal.
12. By order dated 29.01.2016, the insurance company had been
directed to deposit the entire awarded amount with interest with the
tribunal, out of which, 60% (sixty percent) was allowed to be released
to the claimants. The tribunal shall calculate the balance liable to be
paid to the respective claimants and release the same from out of the
remainder in deposit, refunding the excess to the insurance company.
13. The statutory amount shall be refunded.
14. This disposes of the appeal and pending applications.
R.K.GAUBA, J.
SEPTEMBER 18, 2017
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