Delhi High Court
Hdfc Ergo General Insurance ... vs Santosh & Ors. on 19 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 19, 2018
+ MAC.APP. 155/2013
HDFC ERGO GENERAL INSURANCE COMPANY LTD.
..... Appellant
Through: Ms.Neerja Sachdeva, Advocate
Versus
SANTOSH & ORS. ..... Respondents
Through: Ms. Lipi Thapliyal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 30th July, 2012 grants compensation of
`13,60,400/- with interest @ 9% p.a. to respondents-claimants on account
of death of one- Avdesh Singh, aged 35 years in a vehicular accident on
17th June, 2011.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"1. This is a case for claim of compensation on
account of death of Avdesh Singh in the road traffic
accident dated 17/06/2011 caused within the jurisdiction
of PS Kashmere Gate, Delhi.
2. Petitioners‟ case is that on the day of accident
when deceased was on the central divider foothpath ring
Road, near Nigam Bodh Ghat, Delhi, vehicle no. DL
3CAG 4325 (offending vehicle) driven by respondent no. 1
in rash and negligent manner struck against the deceased
and other persons and thereafter, hit against a Truck
standing on the other side of the Ring Road causing
grievous injuries to the deceased. Deceased was taken to
hospital where during course of treatment he succumbed
to his injuries. FIR was lodged and postmortem was
conducted."
3. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (henceforth referred to as "the
Tribunal") and the breakup of compensation awarded is as under:-
1.) Loss of dependency : `13,10,400/-
2.) Love and affection : `25,000/-
3.) Funeral expenses : `5,000/-
4.) Loss of Consortium : `10,000/-
5.) Loss of estate : `10,000/-
_________
Total : `13,60,400/-
4. The challenge to impugned Award by learned counsel for
appellant-Insurer is on the ground that the „Insurance Cover Note‟ and
the Policy relied upon by the Tribunal was fake and the cheque issued to
obtain the „Insurance Cover Note‟ was dishonoured and so, the liability to
pay the compensation is not of the Insurer but of the driver and owner of
the offending vehicle. To submit so, counsel for appellant-Insurer has
drawn attention of this Court to evidence of owner (DW-2) of the
offending vehicle to point out that as per this witness, the cheque issued
by him to obtain „Insurance Cover Note‟ was misplaced by the agent and
so, the premium amount was paid in cash and thereafter, the agent had
delivered the „Insurance Cover Note‟ as well as Insurance Policy to him.
It is submitted by counsel for Insurer that the vehicle in question was later
on insured for the period which does not cover the date of accident and
even the said Policy was cancelled because the cheque issued towards the
premium, was dishonoured. It is next submitted by counsel for Insurer
that the Tribunal has erred in calculating "loss of dependency" by
applying the minimum wages of a skilled person and infact, minimum
wages of an unskilled person ought to be the basis of calculating the "loss
of dependency". It is further submitted by counsel for Insurer that on the
day of accident, minimum wages payable to an unskilled person were
`6,084/- per month. Thus, it is submitted that appellant-Insurer be
absolved of the liability to pay the awarded compensation.
5. On the contrary, learned counsel for respondent-Claimants
supports the impugned Award and submits that liability to pay
compensation has been rightly put upon appellant-Insurer and the
compensation awarded is required to be brought in tune with Supreme
Court's Constitution Bench decision in National Insurance Company Ltd.
Vs. Pranay Sethi & ors. (2017) 16 SCC 680.
6. Upon hearing and on perusal of impugned Award and evidence on
record and the decision cited, I find that Insurance Policy (EX.DW-2/X1)
was valid from 14th June, 2011 upto 13th June, 2012 and was valid on the
day of accident. As per Endorsement (Ex. DW2/RX-3), the aforesaid
Insurance Policy (EX.DW-2/X1) was cancelled on 17th November, 2011.
Meaning thereby, the aforesaid Insurance Policy on the day of accident
was valid. The plea of Insurer that this Insurance Policy (EX.DW-2/X1)
was not issued by the Insurer cannot be accepted for the reason that
neither Agent- Adarsh Lakhotia has been examined by the Insurer nor it
is evident that any action was taken against him by the Insurer. In view
thereof, I find no substance in appellant's plea of Insurance Policy in
question being fake. There is no basis to assert so. In the considered
opinion of this Court, there is no valid ground to absolve appellant -
Insurer from the liability to pay the compensation awarded.
7. As regards assessment of "loss of dependency" is concerned, I find
that the Tribunal has erred in applying the minimum wages of a skilled
person, as there is no documentary proof on record regarding the
deceased being a qualified Electrician. Therefore, the minimum wages of
an unskilled person ought to have been applied. At the relevant time, the
minimum wages payable to an unskilled person were `6,084/- p.m.
8. Supreme Court in Reshma Kumari & Ors. v. Madan Mohan &
Anr., (2013) 9 SCC 65 has reiterated that it is the obligation of the Court
to ensure that the compensation granted is just, fair and proper. In view of
Supreme Court's decision in Pranay Sethi (supra), addition towards
"future prospects" ought to be 40% and not 30%, as awarded by the
Tribunal. Accordingly, the "loss of dependency" is re-assessed as
under :-
`6,084/- X 12 X 16 X 140/100 X 3/4 = `12,26,534/-
9. So far as compensation granted under the „non pecuniary heads‟ is
concerned, it needs to be brought in tune with Constitution Bench
decision of Supreme Court in Pranay Sethi (supra). Accordingly,
compensation granted by the Tribunal under the head of "loss of love &
affection" is disallowed. The "funeral expenses" are increased from
`5,000/- to `15,000/-; "loss of estate" is also increased from `10,000/- to
`15,000/- and compensation granted under the head "loss of consortium"
is also increased from `10,000/- to `40,000/-.
10. In light of the aforesaid, the compensation payable to respondents-
claimants is reassessed as under:-
S.No. Description Amount
1. Loss of Dependency `12,26,534/-
2. Loss of Consortium `40,000/-
3. Funeral Expenses `15,000/-
4. Loss of Estate `15,000/-
Total `12,96,534/-
11. Consequentially, total compensation payable to Claimants is
reduced from `13,60,400/- to `12,96,534/-. A Three Judge Bench of
Supreme Court in a recent decision of Jagdish v. Mohan and Others,
(2018) 4 SCC 571 has granted interest @ 9% per annum on the awarded
compensation and so, interest @ 9% per annum is maintained. The
modified compensation be released forthwith to respondent-claimants in
terms of impugned Award. Statutory deposit alongwith excess deposit be
refunded to appellant-Insurer.
12. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 19, 2018
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