Delhi High Court
Anita & Ors. vs Chauhan Punam Singh Rajusingh & ... on 22 September, 2017
$~R-259 & R-260
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd September, 2017
+ MAC APPEAL No. 749/2010
ANITA & ORS. ..... Appellants
Through: Mr. Navneet Goyal, Adv.
versus
CHAUHAN PUNAM SINGH RAJUSINGH & ORS.
..... Respondents
Through: Mr. Pankaj Gupta for Ms.
Suman Bagga, Adv. for R-3.
+ MAC APPEAL No. 807/2010
ICICI LOMBARD GENERAL INSURANCE CO. LTD
..... Appellant
Through: Mr. Pankaj Gupta for Ms.
Suman Bagga, Adv.
versus
ANITA & ORS. ..... Respondents
Through: Mr. Navneet Goyal, Adv. for R-
1 to 5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Sunil Sehrawat, aged 32 years, while driving motorcycle
bearing registration no. DL 9SC 8260, suffered injuries in motor
vehicular accident that occurred on 12.04.2008 due to the said vehicle
having been hit by truck bearing registration no. GJ 07UU 1398,
admittedly insured against third party risk with the appellant insurance
company (insurer) and died in the consequence. His wife and other
members of the family dependent upon him, they now being
appellants in MAC Appeal No. 749/2010 (collectively, the claimants),
instituted accident claim case (MACT No. 125/2008) on 01.05.2008.
The tribunal, after inquiry, by judgment dated 05.08.2010, accepted
the said claim under Section 166 of Motor Vehicles Act, 1988 and
awarded compensation directing the insurer of the offending vehicle
(it now being appellant in MAC Appeal No. 807/2010) with interest
@ 9% per annum, calculating it thus:-
S.No. Heads Compensatin
1. Loss of Dependency Rs. 8,86,000/-
2. Loss of Love & affection Rs. 1,50,000/-
3. Loss of consortium Rs. 10,000/-
4. Funeral Expenses Rs. 10,000/-
5. Los of Estate Rs. 10,000/-
Total Rs. 10,66,000/-
2. Both the insurer and claimants are in appeal, the former taking
exception to the calculation of loss of dependency with the element of
future prospects of increase in income against an income notionally
assessed and the latter submitting that the evidence of Manjit Singh
(PW-3) should have been accepted and the income of Rs. 6500/-
should have been the basis for such calculation. The claimants are
also aggrieved with the non-pecuniary damages submitting that the
same are deficient.
3. The tribunal has given sound reasons for rejecting the evidence
of Manjit Singh (PW-3) proprietor of firm M/s Meenu Telecom &
Travels where he claimed to have engaged the deceased as a driver.
No records pertaining to the business of the said firm or even the
vehicles that it owned, muchless deployment of the deceased on the
same as a driver were proved. In these circumstances, the tribunal was
constrained to calculate the loss of dependency with the help of
minimum wages of a skilled worker.
4. 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.
5. 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.
6. Since there was no cogent evidence of regular employment of
the deceased, the element of future prospects could not have been
added. In these circumstances, the loss of dependency is re-
calculated after deduction of 1/4th towards personal & living expenses
and applying the multiplier of 16 correctly chosen by the tribunal as
(4100 x 3 ÷ 4 x 12 x 16) Rs. 5,90,400/-, rounded off to Rs. 5,91,000/-
(Rupees Five Lakhs Ninety One Thousand Only).
7. In view of the rulings in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC
150, the non-pecuniary damages awarded by the tribunal are found to
be inadequate. The 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.
8. Thus, the total compensation payable in the case is computed
as (5,91,000 + 1,00,000 + 1,00,000 + 25,000 + 25,000) Rs. 8,41,000/-
(Rupees Eight Lakhs Forty One Thousand Only). The award is
modified accordingly. It shall carry interest as levied by the tribunal.
9. By order dated 29.11.2010 read with orders dated 15.03.2011,
the insurance company was directed to deposit the entire awarded
amount and from out of the same 75% (seventy five percent) was
allowed to be released to the claimants. Since the tribunal specified
the amounts falling to the share of the different claimants, the total
award having been reduced, it is directed that the amounts already
released to the claimants other than the widow (Anita), shall be treated
as their respective share. The entire balance shall now go to the first
claimant Anita alone.
10. The registry shall calculate the amounts payable to the
claimant in terms of the modified award and release the balance to her
from out of the remainder refunding the excess in deposit along with
statutory deposit to the insurance company.
11. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 22, 2017
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