Delhi High Court
National Insurance Company Ltd vs Birma Devi & Ors on 12 January, 2018
$~R-731
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 12th January, 2018
+ MAC.APP. 61/2013
NATIONAL INSURANCE COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
BIRMA DEVI & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Babu Ram @ Babu Lal, then aged 49 years, died due to injuries
suffered in a motor vehicular accident that occurred on 07.07.2007 due
to negligent driving of motor vehicle described as one bearing
registration No. UP-78T-4291, admittedly insured against third party
risk with the appellant (insurer) for the period in question. On the
accident claim case (MACT Suit No.285/10), instituted on 28.02.2008
by his wife and five other members of the family dependent upon him,
they being first to sixth respondents herein (collectively, the
claimants), the Tribunal held inquiry and, by judgment dated
04.07.2012, awarded compensation in the total sum of Rs.13,41,328/-,
fastening the liability on the appellant (insurer) to pay with interest at
7.5% per annum, calculating it thus:
Compensation on account of loss of Rs.13,16,328/-
dependency
Funeral expenses Rs.5,000/-
On account of Loss of Love & Affection Rs.10,000/-
On account of contribution towards loss of Rs.10,000/-
Estate
Total: Rs.13,41,328/-
2. The finding about the driver of the insured vehicle having been
negligent has remained unimpeached and unchallenged and has
attained finality. The insurer, by the present appeal, questions the
calculation of the compensation submitting that there is no basis to the
conclusion of the Tribunal that the deceased was earning Rs.7,500/-
per month and that the addition of future prospects of increase in
income to the extent of 50% was inappropriate.
3. The appeal was put in the list of 'Regulars' as per order dated
26.07.2016. On it being called out on its own turn, there is no
appearance on behalf of the claimants. The counsel for the
insurer/appellant has been heard and the record perused.
4. The grievance about the conclusion that the deceased was
earning Rs.7,500/- per month cannot be accepted as the same was
based on the evidence of Smt. Birma Devi (PW-1) which remained
unchallenged, but the element of future prospects of increase in
income to the extent of 50% does deserve to be corrected in view of
ruling of a 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. Given the fact that the deceased was self-
employed and that he was 49 years old, such element has to be
restricted to 25%. The loss of dependency is, thus, re-calculated as
(7500 X 125/100 X 3/4 X 12 X 13) Rs.10,96,875/- rounded off to
Rs.10,97,000/-.
5. It is noted that the non-pecuniary damages awarded by the
Tribunal and the rate of interest levied (7.5% per annum) are on the
lower side. Following the dispensation in Pranay Sethi (supra), in
lieu of the awards towards non-pecuniary heads of damages granted
by the Tribunal, Rs.40,000/- towards loss of consortium and
Rs.15,000/- each towards funeral expenses and loss to estate are
added. Thus, total compensation is worked out as Rs.(10,97,000 +
40,000 + 15,000 + 15,000) Rs.11,67,000/- (Rupees Eleven Lakhs
Sixty Seven Thousand Only). The award is modified accordingly.
6. Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine per cent) 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.]
7. By order dated 22.01.2013, the insurance company had been
directed to deposit 75% of the awarded amount with up-to-date
interest accrued thereon and out of such deposit, 50% was permitted to
be released to the claimants and balance to be kept in fixed deposit
receipt. The Registry shall calculate the balance amount payable to
the claimants in terms of the modification ordered above and refund
the excess, if any, from the remainder to the insurance company.
Conversely, if the amount deposited is deficient, the insurance
company will be obliged to deposit the same with the Tribunal within
30 days making it available to be released to the claimant.
8. The statutory amount shall be refunded to the insurance
company after proof of award having been satisfied is shown.
9. The appeal stands disposed of with these observations.
R.K.GAUBA, J.
JANUARY 12, 2018
srb
