Delhi High Court
Hdfc Ergo General Insurance Co. ... vs Kulwant Kaur (Since Deceased) ... on 12 April, 2018
$~27
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 12th April, 2018
+ MAC.APP. 1155/2012 and CM Nos. 18665-18666/2012
HDFC ERGO GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Shrey Mehta, Adv.
versus
KULWANT KAUR (SINCE DECEASED)
THR. LRs & ORS. ..... Respondents
Through: Mr. Santosh Kumar and Mr.
Digvijay Singh Jaswal, Advs.
for R-2 to R-5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The appeal at hand has been preferred by the insurance
company (insurer) against which the liability to pay compensation
determined by the Tribunal has been fastened by the judgment dated
29.05.2012 passed on the accident claim case (MACT No. 109/2011)
which was instituted on 22.03.2011 by the first to fifth respondents on
their behalf and on behalf of the respondent No. 5A (all collectively,
the claimants) on account of death of Gopal Singh, aged 67 years, due
to injuries suffered in motor vehicular accident that had occurred on
30.11.2010 due to negligent driving of motor vehicle described as
truck bearing registration no. RJ-23GA-3257 (the truck), the sixth and
seventh respondents herein having been proved to be the driver and
the owner of the said truck on the relevant date and time. The Tribunal
computed the compensation in the total sum of Rs.14,40,000/-, it
being inclusive of Rs.9,75,000/- towards loss of dependency,
Rs.1,50,000/- towards loss of love and affection, Rs.2,50,000/-
towards loss of estate, Rs.15,000/- for funeral charges, and
Rs.50,000/- for loss of consortium. The insurance company was called
upon to pay the said amount with interest at the rate of 9% (nine per
cent) per annum with effect from 17.01.2011. The compensation was
apportioned to the extent of 75% in favour of the first respondent (the
widow) and the balance 25% distributed equally amongst the other
claimants. The tribunal also directed the insurance company to pay
Rs.70,000/- to one of the two counsel representing the claimants and
Rs.30,000/- to other, besides Rs.15,000/- as out of pocket expenses.
2. During the pendency of the appeal, the first respondent (the
widow Kulwant Kaur) died on 10.01.2015. The factum of death has
already been noted on record. She is survived by the second to fifth
respondents and respondent No. 5A who are already on record.
3. The grievance of the insurance company about the error in
calculation of loss of dependency is correct to the effect that there was
no occasion for the element of future prospects of increase to the
extent of 30% being added to the calculation, this being wholly
impermissible in view of the ruling of Constitution Bench of the
Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014,
National Insurance Company Ltd. Vs. Pranay Sethi and Ors.
4. The insurance company, however, also contends that it was
improper on the part of the tribunal to make deduction on account of
personal and living expenses only to the extent of one-third, it being
the submission that the children were all well settled and, therefore,
they could not have been treated as dependants. This argument cannot
be accepted as the testimony of one of the said sons (PW1) about the
second son being dependent has gone unchallenged and unimpeached.
In these circumstances, the deduction to the extent of one-third is
correct.
5. The loss of dependency is re-calculated, without inclusion of
the element of future prospects on the multiplier of 5, with the proven
income of Rs.2,25,000/- per annum. The same works out to
(2,25,000/- x 2/3 x 5) Rs.7,50,000/-.
6. The non-pecuniary damages awarded by the tribunal are also
excessive. They have to be brought in sync with the dispensation in
Pranay Sethi (supra). In their lieu, Rs.40,000/- towards loss of
consortium and Rs.15,000/- each towards loss of estate and funeral
expenses are added. The total compensation comes to
(7,50,000+40,000+15,000+15,000) Rs.8,20,000/-. The award is
modified accordingly. Needless to add, it shall carry interest as levied
by the tribunal.
7. By order dated 05.11.2012, the insurance company had been
directed to deposit 60% of the awarded amount with upto date interest
with UCO Bank in the name of the claimants within the period
specified and such amount upon deposit was allowed to be released to
the claimants. The counsel for the claimants clarifies that no amount
was released pursuant to the above-mentioned direction to the first
respondent (claimant) during her lifetime, and, therefore, the
substantial amount has remained with the bank in the form of fixed
deposit receipts, though some portion (25%) has been released by the
bank to the other claimants by transfer into their respective accounts.
8. In above view, it is directed that the balance amount under the
modified award shall be distributed equally amongst the surviving five
claimants. The registry shall calculate the amounts, thus payable to
each claimant, and have the same released by the Bank from the
remainder in deposit, refunding the excess in deposit to the insurance
company. Conversely, if there is any deficiency in the deposit of
payment by the insurance company, the claimants will have the liberty
to take out execution proceedings.
9. There being no justification for such inclusion, the directions by
the tribunal about the counsel fee and out of pocket expenses are set
aside.
10. The statutory deposit shall be refunded.
11. The appeal and the applications filed therewith are disposed of
in above terms.
R.K.GAUBA, J.
APRIL 12, 2018/uj
