Delhi High Court
Bajal Allianz General Insurance ... vs Urmila Das & Ors. on 21 September, 2017
$~R-247
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st September, 2017
+ MAC APPEAL No. 650/2010 and CM APPL.17652/2010
BAJAL ALLIANZ GENERAL INSURANCE COMPANY
LIMITED ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
URMILA DAS & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Kartik Chandra Das, aged 39 years, died due to injuries suffered
in a motor vehicular accident that took place on 24.06.2008 on
account of negligent driving of a three wheeler scooter bearing
registration No.DL-1RD-1608 (TSR), it admittedly being insured
against third party risk with the appellant insurance company (insurer).
On the claim petition (Case No.235/2008) instituted by first and
second respondents (collectively, the claimants) on 01.07.2008
seeking compensation under the structured formula on principle of no-
fault liability under Section 163-A of the Motor Vehicles Act, 1988,
the tribunal held inquiry, and by judgment dated 07.07.2010, awarded
compensation in the total sum of Rs.08,02,940/-, fastening the liability
on the insurer to pay with interest @ 7.5% per annum, the said amount
inclusive of Rs.6,62,940/- calculated towards loss of dependency,
Rs.25,000/- towards funeral charges, Rs.1,00,000/- towards loss of
love and affection, Rs.10,000/- towards loss of consortium and
Rs.5,000/- towards loss of estate.
2. The insurer, by the appeal at hand, submits that since there was
no formal proof of income of the deceased, his earnings were assumed
notionally with the help of minimum wages (Rs.3683/-). It is stated
that the inclusion of element of future prospects of increase by the
tribunal against such income is incorrect. The insurer also questions
the award under non-pecuniary heads of damages submitting that in
the claim petition under Section 163-A of the Motor Vehicles Act,
1988, such awards are impermissible.
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. In the facts and circumstances of the case where there was no
proof of regular income, the element of future prospects of increase is
kept out. It is noted that in terms of second schedule appended to the
Motor Vehicles Act, 1988, the multiplier of 16 would apply for the
age group of 35-40 years. After deduction of one-third, the loss of
dependency is re-computed as (3683/- x 2/3 x 12 x 16) Rs.4,71,424/-,
rounded off to Rs.4,72,000/-.
6. Adding the general damages in terms of second Schedule
appended to the Motor Vehicles Act, 1988, the total compensation in
the case comes to (4,72,000/- + 9,500/-) Rs.4,81,500/- rounded off to
Rs.4,82,000/- (Rupees Four Lakh Eighty Two 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 29.09.2010, 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, if any, in favour of the claimants
in terms of the impugned award, refunding the excess to the appellant
insurance company.
11. The statutory amount shall be refunded.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 21, 2017
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