Delhi High Court
The Oriental Insurance Company ... vs Chokhe & Ors. on 25 September, 2017
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th September, 2017
+ MAC.APP. 887/2016 and CM 35300/2017
THE ORIENTAL INSURANCE COMPANY LIMITED
.....Appellant
Through: Mr. Amit Gaur, Advocate
versus
CHOKHE & ORS. ..... Respondents
Through: Mr. Kanhi Lal, Advocate for
R-1 & R-2.
Mr. Paritosh, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Uday, a bachelor, aged about 20 years, suffered injuries in a
motor vehicular accident that occurred on 22.10.2010, on being hit by
motorcycle bearing registration No.DL-5SAE-0301, driven
negligently by the third respondent, it being registered in the name of
the fourth respondent and admittedly insured against third party risk
with the appellant insurance company for the period in question, and
died in the consequence. His parents, first and second respondents
(collectively, the claimants) instituted accident claim case (MACT
No.357/2010, New No.14936/2015) on 23.11.2010 seeking
compensation. The tribunal held inquiry and, by judgment dated
25.07.2016, awarded compensation in the total sum of Rs.9,45,000/-,
directing the insurer to pay, though granting it recovery rights against
the driver and owner of the motorcycle, they being third and fourth
respondents respectively on the ground that the third respondent was
not holding a valid or effective driving licence, he also being a
juvenile who could not have obtained such licence.
2. The insurer by the appeal at hand submits that the award of
compensation inclusive of Rs.8,10,000/- on account of loss of
dependency is erroneously computed, as element of future prospects
of increase to the extent of 50% has been added and the multiplier of
18 has been invoked, ignoring the fact that the age of the claimant
parents is higher.
3. On the appeal of the insurance company, notices have been
issued to the driver and owner of the offending vehicle, they being
third and fourth respondents respectively. It appears the fourth
respondent could not be served by ordinary mode and, therefore,
substituted service has been resorted to. The amount of compensation
awarded by the tribunal, however, has been put in fixed deposit receipt
in terms of interim order dated 26.10.2016, no part thereof having yet
reached the hands of the claimants (first and second respondents). The
claimants have come up with application (CM APPL.35300/2017) for
release of the said amount. On being asked, the counsel for the
claimants submitted that he is ready to argue on the main appeal.
4. Having regard to the fact that the recovery rights have already
been granted by the tribunal in favour of the insurance company
against the third and fourth respondents, for the reasons set out
hereinafter, there is no need to secure the presence of such other
parties. It may be mentioned that the third respondent, however, is
present through counsel. The date fixed (26.10.2017) for the matter to
be taken up by the Registrar is cancelled. Hearing on the appeal is
advanced with the consent of all sides.
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. There was no clear proof mustered before the tribunal as to the
nature of avocation in which the deceased was engaged much less of
progressive rise in income. In these circumstances, the element of
future prospects could and should not have been added.
8. On the issue of choice of the multiplier in the case of death of a
bachelor, this Court in case titled Reliance General Insurance
Company Limited vs. Gomti & Ors., MAC APP.467/2016, decided on
24th August, 2017, has observed as under:-
"6. The question as to the choice of multiplier in cases of
deaths of bachelors, had come up before this Court in MAC
appeal No. 431/2016 National Insurance Co. Ltd. vs. Mohd.
Siddique & Ors. decided on 18th July, 2017, where it was
urged on behalf of the insurance company that the law laid
down by the Supreme Court in cases of General Manager,
Kerala State Road Transport Corporation vs. Susamma
Thomas & Ors., (1994) 2 SCC 176 and U.P. State Road
Transport Corporation and Ors. vs. Trilok Chandra and
Ors., (1996) 4 SCC 362 continues to prevail as the binding
precedent. This Court, after examining the issue in light of
the decisions in aforementioned cases and in the cases of
Reshma Kumari vs. Madan Mohan (2013) 9 SCC 65 and
noting the dicta in Central Board of Dawoodi Bohra
Community & Anr. v. State of Maharashtra & Anr., (2005) 2
SCC 67; Safiya Bee v. Mohd. Vajahath Hussain @ Fasi,
(2011) 2 SCC 94 and Union of India & Ors. v. S.K. Kapoor,
(2011) 4 SCC 589, held as under:-
"16. Since the decision in Trilok Chandra and Ors.,
(supra) by a bench of three Hon'ble Judges is prior in
time in relation to the decisions in Reshma Kumari
(supra) and Munna Lal Jain (supra), it is the
statement of law on choice of multiplier in the former
which is to be taken as the binding precedent. Thus,
this court will follow the dictum in the said judgment
and adopt the multiplier according to the age of the
deceased or that of the claimants, whichever is
higher"."
9. Since the evidence would show that the age of the mother on
the relevant date was 38 years, the multiplier of 15 only could have
been applied.
10. The accident had occurred on 22.10.2010 when the minimum
wages of unskilled worker were in the sum of Rs.5278/- per month.
Making a deduction of 50% towards personal and living expenses, and
applying the multiplier of 15, the loss of dependency is re-calculated
as (5278/- ÷ 2 x 12 x 15) Rs.4,75,020/- rounded off to Rs.4,76,000/-.
11. It is noted that the award under the non-pecuniary heads of
damages granted by the tribunal is on the lower side. 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, amount of
Rs.1,50,000/- is granted towards loss of love & affection, besides
Rs.50,000/- each towards loss of estate and funeral expense.
12. Hence, the total compensation payable in the case comes to
(4,76,000/- + 1,50,000/- + 50,000/- + 50,000/- ) Rs.7,26,000/- (Rupees
Seven Lakh Twenty Six Thousand Only).
13. The award is modified accordingly, it shall carry interest as
levied by the tribunal.
14. Since the insurance company has already been granted recovery
rights, the plea for total exoneration is unjustified and thus repelled.
15. By order dated 25.10.2016, the insurer had been directed to
deposit the entire awarded amount with upto date interest which was
kept in fixed deposit receipt in UCO Bank, Delhi High Court Branch.
The registry shall now release the requisite amounts to the claimants
in terms of the modification ordered above, refunding the excess in
deposit to the insurance company with statutory deposit.
16. The appeal along with accompanying application stands
disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 25, 2017
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