Delhi High Court
New India Assurance Company ... vs Manju Devi & Ors. on 21 September, 2017
$~R-244
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st September, 2017
+ MAC APPEAL No. 637/2010
NEW INDIA ASSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. Priyadarsi Acharya,
Advocate
versus
MANJU DEVI & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Shashi Bhusan Kumar, aged 32 years, died due to injuries
suffered in a motor vehicular accident that took place on 11.09.2006
on account of negligent driving of truck bearing registration No.HR-
66-0102, it having admittedly been insured against third party risk
with the appellant insurance company (insurer). On the claim petition
(Suit No.341/2009) instituted by first to fifth respondents (collectively,
the claimants), the tribunal held inquiry and, by judgment dated
23.07.2010, awarded compensation in the total sum of Rs.16,67,000/-,
the said amount inclusive of Rs.15,12,000/- towards loss of
dependency. The liability to pay the said amount with interest @
seven and a half per cent (7.5%) per annum was fastened against the
insurance company.
2. The insurer, by the appeal at hand, questions the calculation of
loss of dependency on the ground that the element of future prospects
of increase by fifty per cent (50%) was wrongly added.
3. 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.
4. 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.
5. It is noted that the claimant had examined two witnesses
Raghav (PW-2) to prove salary earned from S.N. Enterprises and
Prem Chand Srivastav (PW-4) to prove income from commission
from Sahara India Parivar. The tribunal concluded the income to the
extent of Rs.7,000/- per month, but also observed that the employment
was not permanent. Since there was no proof of any regular
employment, much less of progressive rise in income, the element of
future prospects could not have been added. After making deduction
of one-fourth towards personal and living expenses, and applying the
multiplier of 16, the loss of dependency is re-calculated as (7,000/- x
3/4 x 12 x 16) Rs.10,08,000/-.
6. It is, however, noted that the awards of Rs.10,000/- each
towards loss of estate, loss of consortium and funeral expenses and
Rs.1,25,000/- towards loss of love and affection, are not in sync with
the rulings in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54
and Shashikala V. Gangalakshmamma (2015) 9 SCC 150. Instead,
non-pecuniary damages 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 expenses are added. Thus, the
total compensation payable in the case is computed as (10,08,000/- +
2,50,000) Rs.12,58,000/- (Rupees Twelve Lakh Fifty Eight Thousand
Only).
7. The award is modified accordingly.
8. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum 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.].
9. By order dated 24.09.2010, the appellant had been directed to
deposit the entire awarded amount with the Registrar General of this
Court, and out of such deposit, fifty per cent (50%) was allowed to be
released and the balance was kept in interest bearing fixed deposit
receipt.
10. The registry shall calculate the award, as per modification
ordered above, releasing the balance in favour of the claimants in
terms of the impugned award, refunding the excess to the appellant.
Conversely, if the deposited amount is deficient, the insurance
company will be obliged to pay by further deposit with the tribunal
within thirty days.
11. The statutory amount shall be refunded.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 21, 2017
vk
