Delhi High Court
Oriental Insurance Company Ltd vs Sunita & Ors on 25 September, 2017
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th September, 2017
+ MAC.APP. 93/2016 and CM 3402/2016
ORIENTAL INSURANCE COMPANY LTD ..... Appellant
Through: Mr. Tarkeshwar Nath and Mr.
Saurabh Kr. Tuteja, Advocates
versus
SUNITA & ORS ..... Respondents
Through: Mr. Manoj Kumar, Advocate for
R-1 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ram Narayan had died on account of injuries sustained in a
motor vehicular accident that occurred on 28.11.2004 due to the
negligent driving of a motor vehicle described as three wheeler scooter
bearing registration no.DL-1RD-6493 (TSR) concededly insured
against third party risk with the appellant insurance company. His
wife and four children, they being first to fifth respondents, instituted
accident claim case (MACA 182/2012) on 10.05.2012 impleading the
parents of the deceased, they being sixth and seventh respondents
(collectively referred to as the claimants).
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 28.11.2015, accepted the claim for
compensation on the principle of fault liability. It awarded
compensation in the total sum of Rs.10,74,361/- directing the insurer
(appellant) to pay the same with interest at the rate of 9% p.a.
3. The insurer filed the appeal at hand questioning the calculation
of the compensation by the impugned judgment arguing that the loss
of dependency has been wrongly calculated after factoring in the
element of future prospects of increase to the extent of 50% even
though the income of the deceased was assumed on the basis of
minimum wages. It is also the grievance of the insurance company
that the award under the non-pecuniary heads of damages, particularly
under the head of loss of love and affection at Rs.4,00,000/-, is
excessive.
4. Though the insurance company had not taken care to so
mention, it is pointed out by the counsel for the claimants at the
hearing that the tribunal had later modified the award by order dated
21.01.2016 recalculating the loss of dependency with the multiplier of
16, rather than the multiplier of 14 as originally done, it being taken as
an amount of Rs.7,11,245/-, the total compensation awarded hence
being Rs.12,46,245/-.
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. It is admitted by the counsel for the claimants that no proof of
regular employment of the deceased much less any progressive rise in
income has been brought before the tribunal. In these circumstances,
the element of future prospects will have to be kept out.
8. The loss of dependency is re-calculated as [Rs.3,087/- x 4/ 5 x
12 x 16] Rs.4,74,163.20, rounded off to Rs.4,75,000/- (Rupees four
lakh and seventy five thousand only).
9. In view of the rulings of the Supreme Court in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, awards under the non-
pecuniary heads of damages given by the tribunal are found to be
improper. Consistency has to be maintained in such awards.
Therefore, amounts of Rs.1,00,000/- each towards loss of love and
affection and loss of consortium and Rs.25,000/- each towards loss to
estate and funeral expenses are added.
10. Thus, total compensation in the case comes to [Rs.4,75,000/- +
Rs.1,00,000/- + Rs.1,00,000/- + Rs.25,000/- +Rs.25,000/-]
Rs.7,25,000/- (Rupees Seven lakh and twenty five thousand only).
The award is modified accordingly. It shall carry interest as levied by
the tribunal.
11. By order dated 01.02.2016, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
in terms of the judgment referred to above and from out of such
deposit, seventy percent (70%) was allowed to be released to the
claimants, the balance kept in interest bearing account. The tribunal
shall calculate the balance amount payable to the claimants in terms of
the modified award and release the same to the claimants refunding
the excess to the insurance company.
12. The statutory amount shall be refunded to the insurance
company.
13. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
SEPTEMBER 25, 2017
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