Delhi High Court
Oriental Insurance Company ... vs Harbans Lal Kumar & Ors on 25 September, 2017
$~R-265 & R-266 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th September, 2017
+ MAC.APP. 792/2010
ORIENTAL INSURANCE COMPANY LIMITED.... Appellant
Through: Mr. Amit Gaur, Advocate
versus
HARBANS LAL KUMAR & ORS .... Respondents
Through: Mr. Navneet Goyal, Advocate
for R-1 to R-3
+ MAC.APP. 824/2010
HARBANS LAL KUMAR & ORS. .... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
ORIENTAL INSURANCE COMPANY LIMITED
..... Respondent
Through: Amit Gaur, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Navneet Kumar, 27 years old, having obtained the degrees of
Bachelor of Engineering (Electrical) and Master of Business
Administration (MBA) was working for gain and died as a result of
the injuries suffered by him in a motor vehicular accident that
occurred on 31.01.2002, due to negligent driving of tempo bearing
registration no.DL-1LB-4296 (the tempo) and the truck bearing
registration No.UP-21-8323 (the truck), his motorcycle having been
hit first by the tempo and thereafter he being dragged under its wheels
by the truck. The accident claim case (Suit No.696/2008) was filed by
his parents (first and second appellants in MAC APP.824/2010) and
his wife Upasana Kumar (respondent in these appeals) - collectively,
"the claimants"- seeking compensation under Section 166 of the
Motor Vehicles Act, 1988. The tribunal held inquiry and, by
judgment dated 04.08.2010, found the drivers of both the tempo and
the truck to have been negligent, apportioning the liability amongst
them in the ratio of 40:60 respectively. It awarded compensation in the
total sum of Rs.19,07,133/- fastening the responsibility to pay on the
insurers of the two vehicles adding the liability of interest @ 7.5% per
annum.
2. The insurer of the tempo presses its appeal (MAC
APP.792/2010) to argue that the element of future prospects of
increase to the extent of 50% was wrongly added over and above the
last income of Rs.10,000/- of the deceased, proved to have been drawn
as salary from M/s. Hitachi Group and Life Solution, an entity where
the deceased had joined only four days prior to the date of accident,
i.e., 28.01.2002. It is also the argument of the insurer of the tempo that
the case should have been treated as one of a bachelor's death since
Upasana Kumar, wife of the deceased had admittedly remarried in
June, 2003.
3. Per contra, the claimants by their appeal submit that the awards
under the non pecuniary heads of loss of estate, loss of love and
affection, loss of consortium and funeral expenses are inadequate. It
is also pointed out by the claimants in their appeal (MAC
APP.824/2010) that the mother of the deceased had also passed away
during the pendency of the inquiry before the tribunal, a fact which
could not be brought to the notice of the tribunal immediately, but the
same having been confirmed in appeal
4. The evidence on record of the tribunal shows that the deceased,
a qualified engineer, also holding degree of MBA, had earlier worked
with M/s. Federal Logic Corporation Ltd, the claimant (father)
Harbans Lal Kumar having brought the necessary facts on record as a
witness (PW-3). It may be that the deceased had changed job and had
joined the services of new employer M/s. Hitachi Group only on
28.01.2002. But then switch over of the job will not mean that his case
is to be treated as one of a new incumbent. Going by the record of
previous employment, educational qualifications and the terms of
engagement with the new employer, irrefutable evidence of
progressive increase has been brought on record. For this reason, the
element of future prospects of increase cannot be grudged. [See:
judgment dated 28.03.2016 in MAC.APP. 548/2013 United India
Insurance Co. Ltd. v. Kamla & Ors.].
5. The fact that the widow had remarried will not change the
calculation, since the said event took place after more than 1½ years of
the death. She survived as one of the members of the family dependent
on the deceased and, therefore, the dependency loss is found to be
correctly calculated by the tribunal.
6. Following the view taken in Rajesh & Ors. v. Rajbir Singh &
Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015)
9 SCC 150, the awards under the non pecuniary heads of damages are
increased to 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.
7. Thus, the award will stand increased by (2,50,000/-(-)
1,05,000/-) Rs.1,45,000/- raising it to (19,07,133/- + 1,45,000/-)
Rs.20,52,133/- rounded off to Rs.20,53,000/- (Rupees Twenty Lakhs
Fifty Three Thousand Only).
8. It is noted that the tribunal had apportioned the award in the
ratio of 10:60:30 in favour of father, mother and widow respectively.
Since the mother had died during the pendency of these proceedings,
the apportionment will have to be readjusted. It is the view of this
court that the widow requires little more than what has been
apportioned in her favour. Therefore, it is directed that the father and
the widow shall share the award in the ratio of 60:40 respectively.
9. The award is modified in above terms. It shall carry interest as
levied by the tribunal.
10. By order dated 25.11.2010 (in MAC APP.792/2010), the
insurance company had been directed to deposit the entire awarded
amount with the Registrar General within the time specified. By
subsequent order dated 07.09.2015, fifty per cent (50%) of the
deposited amount was released to the first and third respondents. The
registry shall take steps to release the balance from out of the deposit
made.
11. The respective respondents (in MAC APP.824/2010) will be
liable to satisfy the enhanced award by requisite deposits with the
tribunal. In the event of default on their part, the claimants are at
liberty to take out appropriate proceedings to execute the same.
12. The statutory deposit of insurance company (in MAC
APP.792/2010) shall be refunded.
13. Both the appeals are disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 25, 2017
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