Delhi High Court
Sulochana Devi & Ors. vs New India Assurance Company ... on 25 September, 2017
$~R-267
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th September, 2017
+ MAC.APP. 801/2010
SULOCHANA DEVI & ORS. .....Appellants
Through: Nemo.
versus
NEW INDIA ASSURANCE COMPANY LIMITED & ORS.
..... Respondents
Through: Ms. Neerja Sachdeva, Advocate
for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Lalit Kumar, a bachelor, aged about 20 years, died in a motor
vehicular accident that occurred on 27.05.2006, due to negligent
driving of motor vehicle described as Tata bus bearing registration
No.DL-1PA-4228, admittedly insured against third party risk with the
first respondent (insurer) for the period in question. His parents (the
appellants) filed accident claim case (Suit No.311/2006) seeking
compensation. The tribunal held inquiry and, by judgment dated
13.07.2010, upheld the claim for compensation holding the bus driver
responsible for the accident. The compensation was awarded in the
total sum of Rs.6,55,780/- in favour of the claimants, it inclusive of
Rs.5,85,780/- towards loss of dependency, Rs.50,000/- towards loss of
love and affection and Rs.10,000/- each towards funeral expenses and
loss of estate . The insurer was directed to pay the same with interest
@ 7.5% per annum.
2. The claimants by the appeal at hand sought enhancement of the
compensation.
3. The appeal was put in the list of regulars to come up on its own
turn. When it is called out, there is no appearance on behalf of the
appellants. The matter has been considered with the assistance of the
counsel for the insurer.
4. It is noted that the claimants have pleaded in the appeal that the
deceased was earning Rs.10,000/- per month. This contention is not
correct as the last salary proved was vide salary slip (Ex.PW-6/4), the
total emoluments being Rs.7510/- the same as taken by the tribunal.
The reliance on the recommendation for increment of Rs.2,500/- vide
document (mark B) was considered by the tribunal and rejected for
sound reasons. The said recommendation, was not strictly proved by
cogent evidence. Even otherwise, it might have resulted in increase in
the salary in future. The plea of the appellants that the income would
have increased over the period thus cannot be accepted.
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 of progressive rise in income of the
deceased. In these circumstances, the element of future prospects
could not have been added.
8. It is, however, noted that the non-pecuniary damages awarded
by the tribunal are on the lower side. Following the view taken in
Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and
Shashikala V. Gangalakshmamma (2015) 9 SCC 150, compensation in
the sum of Rs.1,00,000/- towards loss of love & affection and
Rs.25,000/- each towards loss of estate and funeral expense are added.
There shall, thus, be a net increase in the award by a sum of
Rs.(1,50,000 - 70,000) Rs. 80,000/-, raising the award to (6,55,780 +
80,000) Rs.7,35,780/- rounded off to Rs.7,36,000/- (Rupees Seven
Lakh Thirty Six Thousand Only).
9. The award is modified accordingly.
10. Following the consistent view taken by this Court, the rate of
interest is increased to nine per cent (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.].
11. The entire enhanced portion with corresponding interest shall
fall to the share of first appellant (mother) only. The insurance
company (first respondent) is directed to satisfy the enhanced award
by requisite deposit with the tribunal within thirty days, making it
available to be released to the claimant/first appellant (mother) in the
form of fixed deposit receipt to be taken out from a nationalized bank
for a period of seven years with provision to draw periodic interest.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 25, 2017
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