Delhi High Court
Geeta Rathor & Ors. vs The Oriental Insurance Company ... on 23 July, 2019
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 23.07.2019
+ MAC.APP. 506/2019 & CM No.19902/2019
GEETA RATHOR & ORS. ..... Appellants
Through: Mr. R. K. Sonkiya, Advocate.
Versus
THE ORIENTAL INSURANCE COMPANY
LTD & ORS ..... Respondents
Through: Mr. Pradeep Gaur, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
CM No.19902/2019 (for delay)
1. The delay of 236 days in filing the appeal is stated to be explained on
the ground that the certified copies which the appellants had obtained were
misplaced; hence, the entire exercise had to be undertaken all over again.
The learned counsel for the appellants submits that the appellant no.1 is an
illiterate person and is not well-versed with the process of Courts.
2. In view of the above and for the reasons mentioned in the application,
the delay is condoned. The application stands disposed-off.
MAC.APP. 506/2019
3. Issue notice.
4. Mr. Pradeep Gaur, the learned counsel accepts notice on behalf of the
Insurance Company.
5. At joint request, the appeal is taken up for final disposal.
6. The appellants impugn the award on the ground that it is on the lower
side, in particular, the computation of 'loss of dependency' on the basis of
minimum wages applicable to a skilled worker. The appellants had claimed
that the deceased was a driver and was working with Ms. Poonam and
earning Rs.6,000/- per month. Additionally, it was also claimed that the
deceased was earning Rs.2,000/- per month by working part-time as a
Security Guard with Anmol Jeevan Network at Azadpur, Delhi. Neither of
these two claims was proven by way of any evidence. The learned Tribunal
found that the testimony of PW2 - Arun Kumar, a co-worker, was unable to
prove that the deceased was working part-time as a security guard.
Therefore, mere statement of Arun Kumar was not sufficient proof to
establish that the deceased was earning the aforesaid amount.
7. Furthermore, Ms. Poonam, the so-called employer, who was allegedly
paying Rs.6,000/- per month to the deceased was not examined. In the
absence of above, nothing was proven apropos the claim of the appellants
that the deceased was earning Rs.8,000/- per month. In the circumstances,
while computing the 'loss of dependency', the learned Tribunal considered
the monthly salary of the deceased to be Rs.4,377/- per month in terms of
the minimum wages, of skilled labour, at the relevant time. The reasoning
and the conclusion on this count cannot be faulted.
8. The next argument by the appellants is that limiting compensation for
loss of estate at Rs.15,000/- is erroneous and it would be Rs.1 lacs looking at
the status of the parties. The contention is untenable in view of the
judgment of the Supreme Court in National Insurance Company vs.
Pranay Sethi 2017 ACJ 2700, in particular, para 61(viii), which has held
that for the loss of estate, compensation of Rs.15,000/- would be payable.
Therefore, this argument too is dismissed.
9. The impugned order has awarded 'loss of consortium' of Rs.40,000/-
only to the widow of the deceased. The appellants seek the same relief for
each of them, as well as compensation for 'loss of love and affection', which
has not been awarded to them. In SLP No. 3192 of 2018, Magma General
Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & Ors., decided on
18.09.2018 the Supreme Court awarded Rs. 40,000/- as 'loss of consortium'
to each of the dependants of the deceased, and further upheld the order of
the High Court, awarding an additional Rs. 50,000/- to each dependant of
deceased towards 'loss of love and affection'. The same principle shall be
applied to the present appellants as well. Accordingly, they are each
awarded Rs. 40,000/- and Rs. 80,000/- towards 'loss of consortium' and
'loss of love and affection' respectively.
10. The learned counsel for the appellants states that non-grant of interest
to the claimants for the period from 26.04.2013 to 22.05.2015 too is
erroneous and needs to be set aside because the time taken in disposal of an
application seeking impleadment of a relevant party cannot be to the
detriment of the appellants.
11. By order dated 24.08.2018, the learned Tribunal had inter-alia held as
under:-
" Heard on the application U/s 151 and 152 of CPC filed
on behalf of the insurance company.
Reply to the aforesaid application has been filed today
on behalf of the non-applicant/petitioner. Be taken on record.
Copy supplied.
By the present application, the applicant/insurance
company is seeking correction in the award dated 04.05.2018
whereby an award in the sum of Rs. 6,82,870/- was passed in
favour of the petitioner and against the applicant/insurance
company including interim award alongwith interest (a) 9%
per annum from the date of filing the claim petition i.e.
19.02.2010 till realization by this tribunal and the directions
has been given to the applicant/insurance company to deposit
the awarded amount within 30 days, it is also stated in the said
application that while calculating the awarded amount, this
tribunal has not considered the order dated 26,04.2013
whereby the Ld. Predecessor of this tribunal has held that the
petitioner shall not be entitled to interest from today i.e.
26.04.2013 till she steps into witness box.
It is further stated in the application that petitioner has
filed her evidence by way of affidavit on 22.05.2015 and her
evidence was recorded on 10.11.2017 and in between the
petitioner has filed the application U/o 1 rule 10 of CPC for
impleadment of Smt. Saroj Devi as respondent but the said
application has not been disposed of as submitted by the
counsel for the petitioners. Therefore, it is prayed by the
counsel for the applicant/insurance company that award dated
04.05.2018 may kindly be corrected and the interest from
26.04.2013 till 10.11.2017 may kindly be ordered to be waived
off.
I have perused the case file. On perusal of the order
dated 26.04.2013 passed by the Ld. Predecessor of this
tribunal, it reveals that petitioner shall not be entitled to
interest from 26.04.13 till petitioner steps into witness box. I
have also perused the order dated 22.05.2015 which reveals
that an evidence by way of affidavit filed on behalf of
petitioner Smt. Geeta Rathore and the submission was also
made by the counsel for the insurance company on the same
day that a similar petition for claiming compensation
regarding death of deceased has also been filed in the courts
at Etaa, U. P. and the petitioner sought time to apprise the
court in this regard and the matter was adjourned for further
proceedings for 14.08.2015. On 14.08.2015, the court was on
leave and the case was adjourned to 04.12.2015. Meanwhile
an application under order 1 rule 10 of CPC was filed on
23.09.2015 on behalf of the petitioner thereby seeking
impleadment of Smt. Saroj Devi as respondent in the present
matter. Thereafter, the case was continuously pending for the
purpose of impleadment of Smt. Saroj Devi as respondent in
the present case and order sheet dated 28.07.2017 is reflecting
that the petition filed by Smt. Saroj Devi i.e. sister of deceased
has been dismissed by the Ld. MACT Etta, U. P. vide judgment
dated 17.09.2012 and the certified copy of the said judgment
was also placed on record by the petitioners. Thereafter, the
case was adjourned for PE for 10.11.2017.
On 08.11.2017, the present case was transferred to this
court in pursuance of the order dated 20.09.2017 passed by
the Ld. District & Sessions Judge, North-West District, Rohini
Courts, Delhi.
On 10.11.2017, Petitioner was examined as PW-1 and
she was cross examined by the counsel for the
applicant/insurance company.
In view of the over all facts and submissions made by
the counsel for the parties, the application U/s 151 and 152 of
CPC is allowed and it has been held that petitioner shall not
be entitled to the interest from 26.04.2013 till 22.05.2015 i.e.
date of filing an affidavit of evidence by the petitioner. Award
dated 04.05.2018 is corrected accordingly. Rest of the award
shall remain as it is.
Counsel for the petitioners who had moved the
application u/o 1 rule 10 of CPC for impleadment of Smt.
Saroj Devi submits that he is not pressing the aforesaid
application and prayed that same may kindly be dismissed.
Hence, the application u/o 1 rule 10 of CPC is dismissed
being not pressed.
File be consigned to Record Room.
Copy of this order be also placed in case Misc. DJ
377/18 titled 'Geeta Rathore & others Vs. Rambir Singh &
Others.
Copy of this order be also provided to the parties."
12. From the above, what emanates is that after the learned Tribunal had
ordered on 26.04.2013 that the claimants would not be entitled to any
interest from that day onwards till she i.e. claimant no.1 - the widow, steps
into the witness box. Therefore, it was for her to lead evidence, which she
did not do for more than two years. The learned Tribunal noted that the
claimants had moved an appropriate application in this regard only on
23.09.2015, therefore, quite rightly, interest was denied to her for the period
26.04.2013 till 23.09.2015. The Court finds no reason to interfere with the
reasoning and conclusion.
13. Let a fresh computation be done by the Insurance Company and the
computed monies be deposited before the learned Tribunal within four
weeks from receipt of this order for disbursal to the beneficiary(s) in terms
of the scheme of disbursement specified in the Award.
14. A copy of the computation and proof of depositing the enhanced
compensation shall be intimated to the learned counsel for the appellants.
15. In view of the above the appeal, alongwith pending application, stands
disposed-off.
NAJMI WAZIRI, J.
JULY 23, 2019
sb
