Delhi High Court
M/S The United India Insurance Co ... vs Dincy Devassy & Ors on 12 December, 2019
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12.12.2019
+ MAC.APP. 779/2018
M/S THE UNITED INDIA INSURANCE CO LTD ..... Appellant
Through: Mr. D.D. Singh and Mr. Navdeep
Singh, Advocates.
versus
DINCY DEVASSY & ORS ..... Respondents
Through: Mr. Siddhant Sharma and Ms. Anu
Mehta, Advocates for R-1.
Mr. S.N. Parashar, Advocate for R-2
& R-3.
Ms. Hetu Arora Sethi, Additional
Standing Counsel (GNCTD).
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
MAC.APP. 779/2018, CM APPL. 35617/2018, CM APPL. 44418/2018 &
CM APPL. 46040/2018
1. This appeal impugns the award of compensation dated 05.06.2018,
passed by the learned MACT in Case No. 357310-16, on the ground that the
multiplier of 17 had been wrongly applied by the learned Tribunal.
2. The Court would note that in terms of the dicta of the Supreme Court
in Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121, the
multiplier of 16 would be applicable only to a person who falls in the age
bracket of 31 to 35 years. The deceased was over 30 years, but had not yet
attained the age of 31 years, therefore, the lesser multiplier i.e. 16 would not
be applicable. The appellant's contention is untenable and is rejected.
3. The appellant further contends that the flexible allowance which
comprises medical allowance, leave travel allowance, recommendation for
his services, company lease accommodation and telephone allowance, etc.,
was not fixed, therefore, the amount of Rs. 23,272/- on these account heads
could not be taken as a regular component for computation of 'loss of
dependency'. However, the appellant does not explain the component of
medical allowance from the said amount, which it wants to be deducted. It
is also not shown whether the same is a fixed monthly amount. In the
absence of anything to the contrary, that the claimants were dependent on
said amount, the appellant's contention is baseless that the deceased was
entitled to the allowances, which would enure to his benefit and to the
benefit of his family too. Had he been alive, these benefits would have been
available to the claimants. In the circumstances, there is no reason to
exclude the said amounts.
4. The appellant next contends that the father was not dependent upon
the deceased. The said contention is untenable because the father had clearly
deposed apropos his dependency. He had denied the insurer's suggestion
that none of the family members was dependent upon the deceased. The
father had stated that he had never worked in his entire life and was
surviving on family property i.e. agricultural land; having a monthly income
from a coconut plantation which varied between Rs. 4,000/- to Rs. 5,000/-;
that he had a wife and a daughter to take care of, who were earlier dependent
upon the deceased. The father had further deposed that his daughter is
unmarried and about 27 years of age; she was getting a stipend from a
government hospital, as she had already completed her MBBS.
5. The Court would note that a mere income of Rs. 4,000/- to Rs. 5,000/-
cannot be sufficient for the father and mother aged 63 years and 59 years
respectively. Apropos the father being treated as a dependent, in Sarla
Verma (supra), the Supreme Court held as under:
"31......
Further, subject to evidence to the contrary, the father is
likely to have his own income and will not be considered
as a dependant and the mother alone will be considered
as a dependant. In the absence of evidence to the
contrary, brothers and sisters will not be considered as
dependants, because they will either be independent and
earning, or married, or be dependent on the father."
(emphasis supplied)
6. In the present case, there are three claimants i.e. the widow of the
deceased, and his parents. All three have claimed dependency. As noted
hereinabove, the father's testimony that he was dependent upon his deceased
son, remains unshaken. He has stated that he was dependent upon the
deceased. Even otherwise, mere earning of Rs. 4,000/- to Rs. 5,000/- a
month would not be sufficient for the three members of the family. In the
circumstances, his dependency stands established in terms of the exception
carved out in the Sarla Verma (supra). The requisite evidence has been led
and it is credible from the attendant circumstances of their age, etc.
7. The appellant contends that driving a vehicle on a fake licence was a
fundamental breach of policy condition, therefore, the insurer cannot be held
liable to indemnify any such loss. The appellant has been granted right of
recovery against the owner and driver because the driving licence was found
to be fake.
8. The Court would note that in terms of the principle of 'pay and
recover' laid down by the Supreme Court in various judgments, the
compensation awarded would have to be paid to the beneficiaries of the
Award, by the insurance company and then the same be recovered from the
owner and the driver of the vehicle. Therefore, let the awarded amount as
already deposited before this Court, be released to the beneficiaries of the
Award, in terms of the scheme of disbursement specified therein.
9. The appeal, alongwith pending applications, is accordingly dismissed.
The statutory amount, alongwith interest accrued thereon, be deposited into
the 'AASRA' Fund created by this Court.
10. The Court would note that the claimants have supplied a copy of the
order for plantation to the Deputy Conservator of Forests (South) [DCF (S)]
and have also filed a Compliance Report in this regard. None appears on
behalf of the DCF (S) nor has any Compliance Report been filed by the said
officer.
11. Issue notice to the DCF (S) through Ms. Hetu Arora Sethi, the learned
Additional Standing Counsel for GNCTD who accepts notice on his behalf,
she assures the Court of due compliance.
12. Let the DCF (S) be present on the next date alongwith Compliance
Report, with an explanation as to why the same has not been filed till date.
13. List for compliance on 17.12.2019.
NAJMI WAZIRI, J
DECEMBER 12, 2019/AB
