Delhi District Court
Accident Claims Tribunal02 : ... vs Sh. Mange Ram on 13 March, 2015
Consolidated Cases bearing No. 383/14 & 382/14
IN THE COURT OF SH. MUKESH KUMAR : PRESIDING OFFICER:MOTOR
ACCIDENT CLAIMS TRIBUNAL02 : (WEST):DELHI.
Case No.383/14 ( Old Suit No. 675/12)
1 Smt. Saroj, W/o. Sh. Babu Ram ( Mother, aged 45 years)
2. Babu Ram, S/o. Sh. Mansa Ram (father, aged 50 years)
Both R/o. VPO Saroorpur Kalan, Distt. Baghpat, UP.
.......Petitioners in the First Petition
Case No. 382/14 (Old Suit No. 700/12)
1. Munni, W/o. Late Satender ( widow, aged 36 years)
2. Dheeraj, S/o. Late Satender ( son, aged 20 years)
3. Neeraj, S/o. Late Satender ( son, aged 18 years)
4. Anil, S/o. Late Satender ( son, aged 16 years)
5. Tinu, S/o. Late Satender ( son, aged 12 years)
6. Ramveri @ Rambhateri, W/o. Late Jaipal ( Mother 70 years)
R/o. VPO Saroorpur Kalan, Distt. Baghpat, UP.
(petitioner nos. 4 and 5 being minor represented through their natural
guardian)
.......Petitioners in the Second Petition
VERSUS
1. Sh. Mange Ram, S/o. Sh. Pitam Singh ( Driver),
R/o. VPO Saroorpur Kalan, Distt. Baghpat, UP.
2. Kulwant Singh ( Owner)
R/o. D74, Vishnu Garden Ext. 5, New Delhi110018.
Page No.1/27
Consolidated Cases bearing No. 383/14 & 382/14
3. M/s. National Insurance Co. Ltd. ( Through Manager, RO II)
2E/9, Jhandewalan Extension, New Delhi110001. ( Insurer)
.............Respondents in both the petitions
Date of institution of petition no. 383/14 : 21.09.2012 Date of institution of petition no. 382/14 : 01.10.2012 Date of reserving judgments/orders : 10.03.2015 Date of pronouncement : 13.03.2015 CONSOLIDATED JUDGMENTCUMAWARD:
1. By this consolidated judgment cum award, I shall dispose of two petitions bearing Suit no. 383/2014 and 382/2014 (hereinafter called the first petition and second petition respectively) filed by the petitioners u/s. 166 and 140 Motor Vehicle Act 1988 respectively amended upto date (hereinafter referred as 'Act'). Since both petitions arising out of the same motor vehicle accident, the same can be conveniently disposed of together.
2. Both petitions were consolidated vide order dated 11.12.2013 and the petition bearing No. 383/14 ( Old No. 675/12) was ordered to be treated as leading case.
3. The case of the petitioners are that on 18.12.2011 at about 08.15 PM both the deceased persons namely Yogender Singh @ Bittu and Satender alongwith other persons were going in Indica Car bearing No. DL4CP6169 being driven by its driver/respondent no.1 in utmost high speed, rashly, negligently and without blowing horn and hit the tree ( road tree). Both deceased persons were taken to CHC, Page No.2/27 Consolidated Cases bearing No. 383/14 & 382/14 Baghpat, where both persons were declared as brought dead.
4. Respondent nos. 1 and 2 never appeared in the court and they did not file any written statement. The accident in the present case has occurred outside Delhi, so there was no occasion for filing the DAR. However, petitioner has filed copy of report U/S. 174 Cr.P.C.
5. Written statement was filed by respondent no. 3/ insurance company wherein it has submitted that the Insurance Company is not liable for any compensation as the policy is " Act Only" policy, as such the policy in question does not cover the risk of the occupants of the vehicle in question. No further additional premium was taken by the insurer from the owner of the alleged offending vehicle.
Insurance Company has further submitted that the deceased were travelling as a gratuitous passenger in the offending vehicle.
6. From the pleadings of the parties, the following issues were framed on 03.01.2015 in both cases separately:
1. Whether the deceased Yogender Singh @ Bittu and deceased Satender suffered fatal injuries in an accident that took place on 18.12.2011 at about 10.10 PM involving Indica Car bearing No. DL4CP6169 driven by respondent no.1, owned by Respondent No. 2 and insured with respondent no.3/Insurance Company? OPP
2. Whether the petitioner/petitioners is entitled for compensation? If so, to what amount and from whom?
3. Relief.
7. In order to establish her claim in first petition Smt. Sarojpetitioner examined herself as PW1. PW2 Sh. Bijendereye witness is examined in both petitions.
Page No.3/27
Consolidated Cases bearing No. 383/14 & 382/14
8. In the second petition Smt. Munni examined himself as PW3.
9. The respondent no.1 and 2 did not examine any witness in their defence. Respondent no. 3 examined Ms. Sarabjeet Oberai, AO as R3W1.
10. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the petitioners and Ld. Counsel for the Insurance Company. Ld. Counsel for the Insurance Company has also filed written arguments on record.
11. My findings on various issues are as under : ISSUE NO.1 IN BOTH PETITIONS
12. Since the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent No.1 was rash and negligent in driving the vehicle at the time of accident.
13. PW2 Sh. Bijendereye witness explained the mode and manner of the accident in his affidavit EX. PW2/A to the effect that on 18.12.2011 at about 08.15 PM he alongwith both the deceased persons namely Yogender Singh @ Bittu and Satender alongwith other persons were going in Indica Car bearing No. DL4CP6169 being driven by its driver/respondent no.1 in utmost high speed, rashly, negligently and without blowing horn and hit the tree ( road tree). Both deceased persons were taken to CHC, Baghpat, where both persons were declared as brought dead. This witness is not crossexamined by respondent no. 1 and 2 as none appeared on the day of examination of this witness. The crossexaminations carried on by the Counsel for respondent no. 3/Insurance Company is not Page No.4/27 Consolidated Cases bearing No. 383/14 & 382/14 suggestive of anything which may discard the claim of the petitioners that the driver of the offending vehicle was not rash and negligent at the time of accident.
14. Photocopy of the report U/S. 174 (5) of the Cr.P.C. has been filed in the court by the petitioner, in which the date, time, place and manner in which the accident has occurred, has been mentioned clearly.
15. Moreover, to determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard.
Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while Page No.5/27 Consolidated Cases bearing No. 383/14 & 382/14 making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
16. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 has been pleased to held as under: "The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
17. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No. 1 was driving the vehicle in a rash and negligent Page No.6/27 Consolidated Cases bearing No. 383/14 & 382/14 manner.
18. The issue no. 1 is therefore decided in favour of the petitioners and against the respondents in both petitions.
COMPENSATION IN FIRST PETITON (Suit no. 383/2014)
19. The photocopy of the High School Certificate EX. PW1/1 filed on record of deceased shows his date of birth as 27.02.1981. The date of accident was 18.12.2011. Accordingly, deceased was more than 30 years but less than 31 years of age as on the date of accident.
20. PW1 in her petition has stated that deceased was unmarried. PW1 in her affidavit EX.PW1/A has stated that deceased was a businessman and was earning a sum of Rs.10,000/ per month, at the time of accident. However, during cross examination by Ld. Counsel for the respondent no. 3, PW1 has admitted to be correct that she has no documentary proof that her son was doing business and was earning Rs.10,000/. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The deceased was High School pass as per photocopy of Certificate EX.PW1/1 of deceased placed on record. The date of accident was 18.12.2011 on which date the minimum wages for a matriculate person was Rs. 8,112/.
21. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same. Page No.7/27
Consolidated Cases bearing No. 383/14 & 382/14
22. I have taken care of the submissions of the Ld. Counsel for petitioner and have perused the record.
23. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012 case had held as under: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV Page No.8/27 Consolidated Cases bearing No. 383/14 & 382/14 employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
24. However,in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that: Page No.9/27 Consolidated Cases bearing No. 383/14 & 382/14
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in Page No.10/27 Consolidated Cases bearing No. 383/14 & 382/14 those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs. 10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
25. Further, Ld. Counsel for respondent vehemently argued that petitioner is not entitled for any appreciation of income for the purpose of compensation towards future prospects in view of the judgment of Hon'ble High Court of Delhi in MAC. APP. 138/2011 decided on 06/09/2013 in New India Assurance Co.
Page No.11/27
Consolidated Cases bearing No. 383/14 & 382/14
26. Per contra, Ld. Counsel for petitioners has relied upon the judgment of Hon'ble High Court of Delhi while disposing of petition has held as under:
27. The Hon'ble High Court of Delhi in recent judgment in MAC APP. 405/2013 decided on 17/09/2013 in Raj Pal & Ors Vs. New India Assurance Co. Ltd while disposing of petition has held as under:
"2. Learned counsel appearing on behalf of the appellants/ claimants has submitted that at the time of the accident, the deceased was 29 years of age and in view of the recent judgment of the Full Bench of the Supreme Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013(6) SCALE 563, the appellants / claimants are entitled for 50% towards future prospects.
3. On the other hand, learned counsel appearing on behalf of the respondent/ Insurance Company while relying upon the case of Union of India & ors. Vs. S. K. 2011 4SCC 589, and Reshma Kumari & Ors. Vs. Madan Mohan & Anr delivered in Civil Appeal No. 4646 of 2009 on 02.4.2013 has submitted that in view of the above judgments since the deceased was not in permanent job, therefore, the appellants/ claimants are not entitled for any compensation on account of future prospects.
"4. The admitted fact is that every salary / income gets increase due to the inflation. Every person after sometime earns more than what he was earning earlier, therefore, in my considered opinion, in every case whether a person is in a Government job or in private job, his income keeps on escalating. It is immaterial whether he/ she is in permanent job or temporary. Earlier majority of the employment was in public sector but in the changed scenario majority of the people finds employment in private sector. Nowadays, people are very Page No.12/27 Consolidated Cases bearing No. 383/14 & 382/14 frequently changing their employment. That does not mean they do not have permanent employment."
5. Therefore, for granting future prospects, if it is taken into consideration that person working in the private organizations are not entitled for the same, being not in permanent job, then claimants in such cases are not entitled for the increase towards his salary/ income. Hence, recently keeping all these facts into view, the Full Bench of the Hon'ble Supreme Court has decided the case of Rajesh and others(supra) as under:
28. After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
"26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Page No.13/27 Consolidated Cases bearing No. 383/14 & 382/14 Kumari and Rajesh."
29. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of Harpal Singh (supra) relied upon by the insurer.
30. Therefore, in view of the aforesaid latest judgment in ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be appreciated for future prospects.
31. Since the deceased was more than 30 years but less than 31 years of age on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra). Hence after averaging out, the income of deceased comes out to be Rs. 12,168/ ( Rs. 8,112/+ 50% ).
32. As per the judgment of Hon'ble Supreme Court of India in Sarla Verma (supra) , 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind his parents. After deducting one half towards personal expenses, the monthly loss of dependency comes out to be Rs.12,168/ () Rs.6,084/ = Rs.6,084/.
33. The Hon'ble High Court in recent judgment titled as The Oriental Insurance Company Ltd. Vs. Sh. A.K. Puri & Ors, reported in 2012 VI AD(S.C.) 399 decided on 24.03.2014 which was duly circulated to the Judicial Officers for the applying the ratio of this judgment for the purpose of multiplier wherein the Hon'ble High Court as referred Reshma Kumari and relevant para is Page No.14/27 Consolidated Cases bearing No. 383/14 & 382/14 para no. 23 which read as under :
"23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to '15' the Apex Court never considered the age of the claimants as a relevant factor. Therefore this court finds no reason to adopt a different formula for the victim who is above '15' years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants never considered as a factor. Finally, in the assessment of dependency, the courts/tribunals are computing the purchasing capacity of the deceased; not the claimants. Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier."
34. Accordingly the appropriate multiplier applicable is 17, as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to (Rs.6,084/ x 12 x 17)= Rs.12,41,136/.
35. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges and Rs. 1,00,000/ towards Loss of Love and Affection. Accordingly, I award Rs. 25,000/ towards funeral charges, Rs.1,00,000/ towards Loss of Love & Affection & Rs. Page No.15/27
Consolidated Cases bearing No. 383/14 & 382/14 10,000/ towards Loss of Estate.
The total compensation is assessed as under:
Loss of dependency : Rs.12,41,136/.
Loss of Estate : Rs 10,000/
Funeral charges : Rs. 25,000/
Loss of Love and Affection Rs. 1,00,000/
Total: Rs.13,76,136/
RELIEF:
36. I award Rs.13,76,136/ ( Rupees thirteen lacs seventy six thousand one hundred and thirty six only in favour of the petitioners and against the respondents as compensation with interest at the rate of 8% per annum including interim award, if any, from the date of filing the petition i.e. 21.09.2012, in favour of the petitioners and against the respondents on account of their liability being joint and several. Petitioner Nos. 1 & 2 shall have the 50% each of share in the award amount.
37. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to each petitioners shall be kept in the form of one FDR for a period of ten years. No loan or advance shall be allowed against the said fixed deposits. Both the petitioners can withdraw the interest quarterly from their FDRs. COMPENSATION IN SECOND PETITON (Suit no. 382/2014) Page No.16/27 Consolidated Cases bearing No. 383/14 & 382/14
38. The date of accident was 18.12.2011. In the petition it is mentioned that the deceased was 38 years as on the date of accident. However, as per the photocopy of marksheet of High School of deceased EX. PW3/3, the date of birth of deceased is 07.10.1972. So, I hold that deceased was 39 years of age on the date of accident.
39. PW3 Smt. Munni in her affidavit EX.PW3/A has stated that her husband/deceased was self employed, running his own business and earning about Rs.12,000/ per month. However, no income proof has been filed on record. PW3 in her crossexamination by Ld. Counsel for the Insurance Company has admitted that he has not filed any documentary evidence regarding the business of her deceased husband and also admitted that she has not filed any income proof of her deceased husband. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. However, it is established on record that deceased was High School passed. The date of accident was 18.12.2011 on which date the minimum wages for a matriculate person was Rs. 8,112/.
40. Ld. Counsel for petitioners requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
41. I have taken care of the submissions of the Ld. Counsel for petitioner and have perused the record.
Page No.17/27
Consolidated Cases bearing No. 383/14 & 382/14
42. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012 case had held as under: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those Page No.18/27 Consolidated Cases bearing No. 383/14 & 382/14 employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
43. However, in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that:
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it Page No.19/27 Consolidated Cases bearing No. 383/14 & 382/14 applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20.The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held Page No.20/27 Consolidated Cases bearing No. 383/14 & 382/14 that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs.10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
44. After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
"26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it Page No.21/27 Consolidated Cases bearing No. 383/14 & 382/14 can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
45. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of MAC APP 138/2011 decided on 06/09/2013 in New India Assurance Co. Ltd. Vs. Harpal Singh relied upon by the insurer.
46. Therefore, in view of the aforesaid latest judgment in 'ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be appreciated for future prospects.
47. Since the deceased was 39 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra). Hence, the income of deceased comes out to be Rs.12,168/ ( Rs. 8,112/+ 50% ).
48. Deceased has left behind him six dependents as per the petition filed on Page No.22/27 Consolidated Cases bearing No. 383/14 & 382/14 record. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending onefourth of Rs.12,168/ on his personal expenses as he had left behind him six legal heirs. Therefore, after deducting onefourth towards personal expenses, the loss of dependency per month comes out to be Rs.9,126/ (Rs.12,168/ less Rs.3,042). The appropriate multiplier applicable is 15, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs.16,42,680/( Rs.9,126 x 15 x 12).
49. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges, Rs. 1,00,000/ towards loss of consortium and Rs.1,00,000/ towards Love & Affection. Accordingly, I award Rs. 1,00,000/ towards loss of consortium; Rs. 1,00,000/ towards loss of Love & Affection; Rs. 25,000/ towards funeral charges; also award of Rs. 10,000/ towards loss of estate.
The total compensation is assessed as under:
Loss of dependency : Rs.16,42,680/
Loss of consortium : Rs. 1,00,000/
Loss of Love & Affection Rs. 1,00,000/
Funeral charges : Rs. 25,000/
Loss of estate : Rs. 10,000/
_
Total: Rs.18,77,680/
RELIEF:
50. I award Rs.18,77,680/ (Rs. Eighteen lacs seventy seven thousand six hundred and eighty Only) in favour of the petitioners and against the Page No.23/27 Consolidated Cases bearing No. 383/14 & 382/14 respondents as compensation with interest at the rate of 8% per annum including interim award, if any, from the date of filing the petition i.e. 01.10.2012 till the date of passing of Award on account of their liability being joint and several. The petitioner no.1 shall have the 40% share in the Award amount and petitioner nos. 2 and 6 shall have shares of 12% each in the award amount.
51. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to petitioner nos. 1 to 4 and 6being Majors shall be kept in the form of one FDR for a period of five years and the 100% of the amount awarded to the minor petitioner No. 5 shall kept in the form of FDR, till he attained majority. No loan or advance shall be allowed against the said fixed deposits. All the petitioners can withdraw the interest quarterly from their FDRs APPORTIONMENT OF LIABILITY
52. The respondent No. 3/Insurance company has produced and examined Ms. Sarabjeet Oberoi, its AO as R3W1. She has proved policy as EX.R3W1/1 and stated that this policy is 'Liability only Policy' ( Act only). She has further stated that occupants in the offending vehicle are not covered under the policy as no additional premium was taken from the insured for the coverage of occupants of the offending vehicle. She has further stated that deceased was traveling as a gratuitous passenger and as such there was breach of the terms and conditions of the Insurance Policy. This witness is not crossexamined by Counsel for the Page No.24/27 Consolidated Cases bearing No. 383/14 & 382/14 petitioner, despite opportunity given. Respondent nos. 1 and 2 did not appear on the day of examination of this witness, so their opportunity was treated as 'NIL'.
I have gone through the entire material on record. It is a fact on record that the policy EX. R3W1/1 is issued for 'Liability only' and this fact is not disputed. So, I hold that the policy is issued for 'Liability only'. Now, the question to be decided is as to whether the Insurance Company is liable for the compensation amount in the present case. Hon'ble Supreme Court in the case reported as 2013 ACJ, 321, titled as "Oriental Insurance Company Limited Vs. Surendra Nath Loomba & Others", in para 21 has been pleased to held as under: "In view of the aforesaid factual position there is no scintilla of doubt that a 'comprehensive/package policy' would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an 'Act policy' stands on a different footing than a 'comprehensive/package policy'. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a 'comprehensive/packet policy' covers the liability, there can not be any dispute in that regard. We may hasten to clarify that the earlier pronouncement were rendered with respect to the 'Act policy' which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Page No.25/27 Consolidated Cases bearing No. 383/14 & 382/14 'comprehensive/package policy', the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi, ( 2009) 7 SCC 148 and, therefore, the matter was referred to a larger bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the High Court of Delhi and we have also reproduced the same."
53. Therefore, keeping in view the findings of Hon'ble Supreme Court in case citied above, Section 147 (1) of the MV Act and Circular No. th IRDA/NL/CIR/F&U/073/11/209 dated 16 November, 2009 issued by IRDA, It is clearly established that in the present case the Insurance Company is not liable to pay the compensation amount to the petitioner. Accordingly, the respondents No.1 & 2 are jointly and severally liable to pay compensation. However, respondent No. 2, being vicariously liable for acts of respondent No.1, is directed to deposit the award amount, within a period of 30 days in the name of the petitioners in terms of the award. In case of any delay, he shall be liable to pay interest at a rate of 12% per annum for the period of delay.
54. The copy of this award be given to the respondent nos. 1 and 2, Insurance Company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for Page No.26/27 Consolidated Cases bearing No. 383/14 & 382/14 opening the account. Ahlmad is directed to send copy of this Award to the Ld. MM concerned and Delhi Legal Services Authority in compliance of the Judgment titled as Rajesh Tyagi & Ors. Vs. Jaibir Singh & Ors. passed in FAO No. 842/2003 dated 12.12.2014 which has been circulated vide Circular No. 1028/CivilIV/DHC, dated 14.01.2015 of Hon'ble High Court of Delhi, New Delhi. File be consigned to Record Room.
55. A separate file be prepared for compliance report and put up the same on 15.06.2015.
Announced in the open court (MUKESH KUMAR)
on 13.03.2015 PO:MACT ( WEST02):DELHI.
Page No.27/27