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Delhi High Court

The Oriental Insurance Co. Ltd. vs Lekharaj @ Lekh Raj &Ors.; on 27 January, 2016

Author: R. K. Gauba

Bench: R.K.Gauba

$~14

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of Decision: 27th January, 2016


+      MAC.APP. 622/2014 & CM Nos. 3914/2015 & 11178/2014

       THE ORIENTAL INSURANCE CO. LTD.                   ..... Appellant
                        Through:       Mr. A.K. Soni, Adv.
                        versus

       LEKHARAJ @ LEKH RAJ &ORS.                       ..... Respondents
                        Through:       Mr. Rajnish K. Jha, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                        JUDGMENT

R.K.GAUBA, J (ORAL):

1. The insurance company is in appeal primarily questioning the quantum of compensation awarded on the petition under Section 166 read with Section 140 of Motor Vehicles Act, 1988 (MV Act) presented by the first and second respondents on 08.10.2013 before the Motor Accident Claims Tribunal ("the tribunal"), registered as case No. 422/2014, by judgment dated 12.05.2014 granting ` 13,64,784/- on account of death of Charan Singh in motor vehicular accident that occurred at about 10.15 p.m. on 09.09.2013 near Gopal Pur Red Light on outer ring road, Timar Pur, Delhi involving collision between his motorcycle and truck bearing registration No. PB 10BM 4015 (the offending vehicle).

2. The deceased was unmarried, aged 26 years old, on the date of accident. Concededly, the claimant's parents were unable to muster proof of his income. The tribunal assumed his income notionally at ` 8,528/- on the basis of minimum wages payable for a non-matriculates at the relevant point of time, factored in the prospect of future increase in income, applied the multiplier of 17 to award the compensation for loss of dependency, adding ` 25,000/- each on account of loss of love and affection and funeral charges besides ` 10,000/- towards loss of estate.

3. The insurance company is aggrieved on the ground that the addition of future prospects in the case of a person described by the claimants themselves to be "self employed" was not correct, and in the teeth of law laid down by a bench of two Hon'ble Judges of Supreme Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.

(2009 ) 6 SCC 121, as affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. vs. Madan Mohan & Anr.(2013) 9 SCC 65. The tribunal has instead followed the ruling in Santosh Devi vs. National Insurance Co. Ltd. in Civil Appeal No. 3723 of 2012 decided on 23.04.2012 which was affirmed by a bench of three Hon'ble Judges in Rajesh & Ors. vs. Rajbir & Ors. (2013) 9 SCC 54.

4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & MAC.APP No.622/2014 Page 2 of 6 Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC166.

5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 Sunil Kumar vs. Pyar Mohd & Ors., this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court. This applies to the matter at hand because the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic increase.

6. For the foregoing reasons, the addition of the element of future prospects cannot be approved.

7. The insurance company is also aggrieved on the ground that the multiplier of 17 adopted by the tribunal on the basis of the age of the deceased was not correct. It is well settled that the multiplier has to be adopted according to the age of the deceased or of the surviving claimants whichever is high. [U.P. State Road Transport Corporation and Ors. vs. Trilok Chandra and Ors., (1996) 4 SCC 362].

8. The claimants did not prove their respective age. However, from the record of the tribunal it is noted that copies of the voter identity card of the first respondent and the Aadhar card of the second respondent were submitted and are available (at pages 293 and 297 respectively). According to the said documents, the first respondent was born in 1960 while the second respondent was born in 1963. Since the accident had occurred in 2013, they would approximately be 53 years and 50 years old respectively on the date of the accident. Since the average age would be 51, the multiplier of 11 would have been the appropriate one to be adopted.

9. Thus, the compensation on account of loss of dependency needs to be re-worked. After deducting the personal and living expenses to the tune of 50 % , the monthly loss of dependency comes to ` 4,264, thus, the total loss of dependency comes to (` 4,264 X 12 X 11) ` 5, 62,848/-, rounded off to ` 5,63,000/-.

10. Since the compensation is being recalculated for the afore-quoted reasons, the grievance of the claimants about the non-pecuniary damages can also be taken into consideration. This Court agrees that the compensation on account of loss of love and affection at ` 25,000/- was on the lower side. Having regard to the dictum in Rajesh & Ors. (supra) the compensation on that count comes to ` 1,00, 000/-. Further, adding the award of ` 25,000/- towards funeral expenses and ` 10,000/- towards loss of estate, the total compensation comes to ` 6,98,000/-, which is hereby awarded, thus modifying the impugned judgment.

11. The second respondent has since died. The claim petition was filed by her joining the husband. In the given facts and circumstances, the entire amount deserves to be released in favour of the first respondent. The awarded amount shall carry interest as levied by the tribunal.

12. In terms of order dated 25.07.2014, the insurance company had been directed to deposit the entire awarded amount with up to date interest within the period specified and out of this deposit, the Registrar General was directed to release 80 % of the awarded amount in terms of the directions of the tribunal. According to the directions of the tribunal, 50% of the awarded amount was kept in 5 FDRs in favour of the two claimants in equal shares in respect of their respective names, the fixed deposit receipts, to be taken out for a period of 1,2,3, 4 and 5 years respectively with liberty to draw quarterly interest though with stipulation that no loan or advance would be allowed.

13. The Registrar General is directed to calculate the amount payable to the first respondent in terms of the award as modified above and release the same to the extent payable to the claimant in accordance with the above noted directions. The balance excess amount shall be refunded to the appellant insurance company.

14. The first respondent by way of his application (CM No. 3914/2015), has prayed for release of the fixed deposit receipts prematurely, in connection with the marriage of his daughter, scheduled to be ceremonised on 24-25 February, 2016. Since in terms of the modified award, excess will have to be refunded, at this stage the MAC.APP No.622/2014 Page 5 of 6 entitlement of the claimants is not clear. The Registrar General shall get the necessary ministerial work on this subject expedited and issue appropriate directions for release in accordance with the above directions within the period of two weeks of this order. The claimant is at liberty to move a fresh application before the tribunal, after the payments have been released in terms of the above directions, for premature release against the FDRs. The tribunal shall consider such request in accordance with law.

15. The statutory deposit, if made, be refunded.

16. The appeal and applications are disposed of in above terms.

R.K. GAUBA (JUDGE) JANUARY 27, 2016 nk MAC.APP No.622/2014 Page 6 of 6