Delhi High Court
Iffco Tokio General Insurance Co. ... vs Geeta Devi & Ors. on 21 September, 2017
$~R-253
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st September, 2017
+ MAC APPEAL No. 686/2010
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Pankaj Seth, Adv.
Versus
GEETA DEVI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ram Bir, aged about 30 years, suffered injuries in a motor
vehicular accident that occurred on 28.12.2007 due to negligent
driving of car bearing registration no. HR 26AG 9819, admittedly
insured against third party risk with the appellant insurance company
for the period in question and died in the consequence. The first to
fifth respondents (collectively, the claimants), being members of the
family of deceased dependent upon him, instituted accident claim case
(MACT 578/2008) on 07.03.2008 seeking compensation. The tribunal
held inquiry and, by judgment dated 02.07.2010, accepted the claim
for compensation holding the car driver responsible.
2. The tribunal computed compensation in the total sum of Rs.
22,97,000/-, calculating it thus:-
S.No. Heads Compensation
1. Loss of dependency Rs. 21,42,000/-
2. Loss of love and affection Rs. 1,25,000/-
3. Loss of consortium Rs. 10,000/-
4. Funeral expenses Rs. 10,000/-
5. Los to estate Rs. 10,000/-
TOTAL Rs. 22,97,000/-
3. By the impugned judgment, liability to pay was fastened on the
insurer with interest @ 9% per annum.
4. The insurer brought the appeal challenging the computation of
loss of dependency submitting that the evidence of Bharat Singh (PW-
3) could not have been accepted.
5. The appeal was admitted and put in the list of „regulars‟. When
it is taken up for hearing, there is no appearance on behalf of the
claimants. The matter has been heard with the assistance of the
counsel for the insurer. Record has been perused.
6. Indeed, the evidence of Bharat Singh (PW-3) was on shaky
foundation. He claimed to be the proprietor of M/s Bharat Associates
Ltd. but no formal proof of existence of any such company was
submitted. The income-tax return of PW-3 (mark Z) forming part of
the material submitted instead showed that M/s Bharat Associates is
the name of a proprietary business rather than that of the company. As
per the statement of PW-3, he had employed the deceased in
September, 2007 only, in the capacity of "marketing-cum-field". The
certificate (mark X) referred to by him during his testimony indicated
the capacity of the deceased to be "field-cum-marketing officer" at
gross monthly salary of Rs. 19,200/-. The witness admitted that he had
not maintained any record of such employment of the deceased. There
was no deduction towards provident fund or employees state insurance
corporation‟s contribution. When asked to show proof of the salary
paid to the deceased he claimed that he had paid the said amount to the
deceased "in cash", referring to the last payment of the salary for
December, 2007 by cheque in the name of the widow, this after death
in the accident. Though reliance was placed by him on the income-tax
return, he conceded that in the said return there was no mention of the
salary paid to the employee. The copies of the computation of the total
income and the profit & loss accounts submitted (page 333 to 337 of
the tribunal‟s record) do not reflect any such payment, the amount of
salary mentioned there actually being the salary drawn by PW-3
himself.
7. In the above facts and circumstances, while the assessment of
the tribunal about the income of the deceased in the sum of Rs.
19,200/- cannot be sustained, it is deemed proper, in absence of any
other proof of gainful engagement of the deceased, to assume the
income notionally with the help of minimum wages payable to a
graduate (4276/-) during the relevant period.
8. After deducting 1/3rd towards personal and living expenses,
applying the multiplier of 17, correctly chosen by the tribunal, the loss
of dependency is calculated as (4276 x 3 ÷ 4 x 12 x 17) Rs. 6,54,228/-,
rounded off to Rs. 6,55,000/-.
9. It is noted that the tribunal has not awarded appropriate
amounts under the non-pecuniary heads of damages. The appropriate
awards are to be added, following the rulings in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150. Therefore, compensation in
the sum of Rs. 1,00,000/- each on account of loss of love & affection
and loss of consortium and Rs. 25,000/- each towards loss of estate
and funeral expense are added.
10. Thus, the total compensation payable in the case is computed
as (6,55,000 + 1,00,000 + 1,00,000 + 25,000 + 25,000) Rs. 9,05,000/-.
(Nine Lakhs Five Thousand only). The award is modified accordingly.
Needless to add, it shall carry interest as levied by the tribunal.
11. It is, however, noted that when the appeal was filed the
insurance company had been directed to deposit the entire awarded
amount with upto date interest with the Registrar General of this Court
vide order dated 11.11.2010. After such deposit had been made by
order dated 01.05.2012, 50% (fifty percent) of the awarded amount
with proportionate interest was allowed to be released to the claimant.
The insurance company had taken no objection to such release at that
stage. Be that as it may, it shall have the right to recover the excess
paid to the claimants by appropriate proceedings. The balance lying in
deposit along with statutory deposit shall be refunded to the insurance
company.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 21, 2017
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