Delhi High Court
Oriental Insurance Co. Ltd. vs Usha & Ors. on 4 January, 2018
$~R-708
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th January, 2018
+ MAC.APP. 9/2013
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Advocate
versus
USHA & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. An accident claim case (MACT No.723/07) was instituted on
02.08.2007, by the first to sixth respondents (collectively the
claimants), seeking compensation on account of death of Rajbir
Kaushik, in a motor vehicular accident that took place on 11.06.2007,
due to negligent driving of motor vehicle described as Tata 407
bearing registration No.DL-1LB-0942, admittedly insured against
third party risk for the period in question with the appellant (insurer).
2. The tribunal after inquiry, by judgment dated 09.11.2012,
accepted the aforesaid case under Section 166 of the Motor Vehicles
Act, 1988 and awarded compensation in the total sum of Rs.7,33,035/-
The said amount inclusive of Rs.5,53,035/- towards loss of
dependency, Rs.10,000/- each for funeral charges, loss of estate and
loss of consortium, Rs.1,00,000/- towards loss of love, company and
affection and Rs.50,000/- for gratuitous services. The liability to pay
the said amount, after deducting interim compensation (wrongly
mentioned as Rs.40,000/-) was fastened on the insurer with levy of
interest @ 9% per annum.
3. The insurer filed the present appeal submitting that the award of
compensation is excessive.
4. At the hearing, the appeal is pressed to point out primarily that
the tribunal fell into error by assuming the age of the deceased as 49
years. This submission, record shows, is correct. The claimants had
submitted the original driving licence of the deceased which is at page
453-A of the tribunal's record indicating his date of birth as
04.08.1955. In this view, the deceased was more than 51 years old on
the date of his death. Thus, the multiplier of '13' was inappropriate
and the element of future prospects of increase in income to the extent
of 30% over and above the income assumed by minimum wages
(Rs.3636/-) excessive.
5. Having regard to the 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., the said
element of future prospects will have to be restricted to 10% only, and
having regard to the age of the deceased, the multiplier of 11 would
apply. Thus, the loss of dependency is re-calculated as (3636/- x
110/100 x 3/4 x 12 x 11) Rs.3,95,960.40 rounded off to Rs.3,96,000/-.
6. The insurance company also submits that the non-pecuniary
damages awarded are unduly high. Following the dispensation in
Pranay Sethi (supra), the non-pecuniary heads of damages also need
to be revised. In lieu thereof, Rs.40,000/- towards loss of consortium
and Rs.15,000/- each towards loss of estate and funeral expenses are
added. Thus, the total compensation comes to (3,96,000/- + 40,000/-
+ 15,000/- + 15,000/-) Rs.4,66,000/- (Rupees Four Lakhs Sixty Six
Thousand Only).
7. Needless to add, the interim compensation if paid will be liable
to be adjusted. The compensation, however, will carry interest @ 9%
per annum as levied by the tribunal.
8. By order dated 04.01.2013, the insurance company was called
upon to deposit the entire awarded amount with upto date interest with
UCO Bank, Delhi High Court Branch, New Delhi and by subsequent
order dated 15.03.2013, out of the said amount 50% was ordered to be
released to the claimants in terms of the impugned award.
9. The registry shall re-calculate the award as per modification
ordered above, releasing the balance, if any, in favour of the claimants
along with interest, in terms of the impugned award, refunding the
excess amount with interest to the appellant (insurer).
10. The statutory amount shall be refunded to the insurer.
11. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
JANUARY 04, 2018/vk
