Delhi High Court
The Oriental Insurance Co Ltd vs Geeta & Ors on 28 October, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:28th October, 2024
+ MAC.APP. 585/2015, CM APPLs. 25218/2022,
CM APPL.18610/2023
THE ORIENTAL INSURANCE CO LTD .....Appellant
Through: Mr. A.K. Soni, Advocate
versus
GEETA & ORS .....Respondents
Through: None.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. Appeal under Section 173 of the Motor Vehicle Act, 1988 has been
filed on behalf of the Insurance Company challenging the impugned award
dated 12.03.2015 on the ground of excess compensation.
2. The learned counsel for the Insurance Company has challenged the
award on the following grounds:
(i) there was breach of Insurance Policy as deceased was a
gratuitous passenger;
(ii) The and the future prospects of the deceased, aged 42 years
could not have been calculated @ 50% but ought to have been
calculated as not more than 25%.
(iii) Compensation granted under non-pecuniary heads, is
excessive:
(a) the loss of love and affection has been quantified as
Rs.4,00,000/-. The deceased was survived by four legal
heirs and each legal heir could have been granted
Rs.40,000/- each and the maximum that could have been
granted was Rs.1,60,000/-;
(b) that loss of consortium could not have been granted once
loss of affection is being given separately.
(c) The funeral charges should be reduced to Rs.15,000/- from
Rs.25,000/-.
3. Submissions Heard.
4. Brief facts are that on 17.07.2008, deceased Satte @ Satyawan was
returning to his home from Village Nahara, District Sonepat, Haryana in a
Tempo No. HR-69-0315 which overturned near Border picket, Narela main
Lampur on account of rash and negligent driving of the Tempo by its
driver/Respondent no. 1. Satte suffered injuries and died on the spot. He was
taken to SRHC Hospital where he was declared dead. FIR No.190/2008 was
registered at P.S. Narela for the offences punishable under Sections
279/338/304A IPC.
5. The learned Tribunal vide impugned award dated 12.03.2015 granted
compensation of Rs.11,47,003.50/- along with interest @ 9% per annum
from the date of filing of the petition till the date of realization, to the
Claimants/ parents.
6. The first objection taken on behalf of the Insurance Company is that
the deceased was travelling as a gratuitous passenger.
7. The learned Tribunal has referred to the testimony of PW1/Smt.
Geeta, wife of the deceased, who had deposed that her husband/deceased
was a Band Master by profession and was travelling in the offending tempo
along with his band items i.e. musical instruments. Though the learned
counsel for the Insurance Company had asserted that he was a gratuitous
passenger but no cogent evidence has been led in this regard. In the cases of
New India Assurance Co. Ltd. v. Aziz Baig and Ors., 1992 ACJ 480;
Oriental Insurance Co. Ltd. v. Dhapubai and Ors., 2004 ACJ 583 and New
India Assurance Co. Ltd. v. Vauki Devi & Ors., 2013 IV AD (Delhi) 642, it
has been observed that a person who is travelling along with his goods in a
vehicle, cannot be termed as a gratuitous person.
8. The learned Tribunal was thus, right in holding that the deceased was
not a gratuitous passenger and there was no violation of the terms of
Insurance Policy.
9. The second ground of challenge was the compensation granted for
future prospects. It is submitted that the income of the deceased was taken
as Rs.4,057/- p.m. as per the minimum wages for skilled worker as notified
on the date of accident, i.e. 17.04.2008. The annual income was calculated
as Rs.48,684/-. One-third of the income i.e. Rs.12,171/- was deducted
towards the personal expenses and the net annual income was calculated as
Rs.36,513/-.
10. The learned Tribunal calculated the Price Escalation Index and noted
that the wages for skilled worker on 01.09.2008 was Rs.4,057/- which has
increased to Rs.10,478/- on 01.10.2014, which is an increase of more than
258%. However, the de-evaluation of rupee was taken as 50% and the future
prospects were calculated @ 50% and the loss of income was taken as
Rs.54,769.50/- p.a.
11. The learned counsel for the Insurance Company has placed reliance
on National Insurance Co. Ltd. v. Pranay Sethi and Ors., AIR 2017 SCC
5157, wherein it has been defined that for a person who is above 42 years of
age, the future prospects may be taken as 25%.
12. It is pertinent to observe that Pranay Sethi (supra), is a subsequent
judgment while in the present case, the accident is of 2008 and the judgment
has been delivered on 04.03.2015. The learned Tribunal has given cogent
explanation for taking the loss of future income as 50% which was
essentially based on the rupee de-evaluation. There is no reason to interfere
in the quantum of compensation, as has been calculated.
13. The Ld. Tribunal quantified loss of love and affection as
Rs.4,00,000/-. The deceased was survived by four legal heirs; according to
Pranay Sethi (supra), each legal heir could have been granted Rs.40,000/-
each and the maximum that could have been granted was Rs.1,60,000/-. It
however, also recognizes enhancement by 10% every three years. However,
considering that Pranay Sethi (supra) is a subsequent judgment while in the
present case, the accident is of 2008 and the judgment has been delivered on
04.03.2015, there is no reason to interfere in the quantum of compensation,
as has been calculated.
14. A sum of Rs.25,000/- has been granted together for loss of consortium
and funeral expenses. Though loss of love and affection and loss of
consortium is essentially one and the same thing, but even if the term 'loss
of consortium' is deleted, Rs.25,000/- for funeral expenses cannot be
considered to be exorbitant.
15. There is no merit in the present Appeal which is hereby dismissed.
Pending applications stand disposed of.
16. The statutory amount deposited by the Insurance Company be
returned in accordance with law.
(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 28, 2024
kks
