Delhi High Court
Icici Lombard General Insurance Co. ... vs Nagina Begum And Anr. on 6 May, 2016
Author: R.K.Gauba
Bench: R.K.Gauba
$~R-71
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06th May, 2016
+ MAC.APP. 544/2007 & CM no.12018/2007
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Pankaj Seth & Mr. Shoumik
Mazumdar, Advs.
versus
NAGINA BEGUM AND ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On her petition (suit no.204/2006) under Section 163-A of the Motor Vehicles Act, 1988 (the MV Act), the first respondent (the claimant) was granted compensation in the sum of `3,97,400/- with interest by the motor accident claims tribunal (the tribunal), by judgment dated 12.05.2007, on account of death of her son Arif Khan due to injuries sustained in a motor vehicular accident that occurred on 06.09.2006, involving use of motorcycle bearing registration no.DL-3SAW-6007. The insurance company admittedly had issued a third party risk insurance cover in respect of the motorcycle for the period in question.MAC APP. No. 544/2007 Page 1 of 4
2. The grounds raised by the appellant/insurance company are that the deceased, being the son of the owner of the said vehicle, cannot be treated as a third party and further that the computation of the future prospects to the extent of 50% over and above income notionally assessed (`3200) on the basis of minimum wages was erroneous.
3. The first contention must be rejected as merely on account of relationship with the owner, the deceased does not cease to be a third party.
However, there is merit in the second contention of the appellant/insurance company with regard to the addition of future prospects.
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 & 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 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.), 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 MAC APP. No. 544/2007 Page 2 of 4 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.
6. Since the income of the deceased has been assessed notionally, future prospects need not be added. It is, however, noted that the tribunal applied multiplier of 13 having regard to the age of the claimant mother ignoring the fact that it was a claim made under Section 163-A of the MV Act where the age of the deceased would regulate the choice of multiplier which being 21 years, the appropriate multiplier was 17. At the same time, the calculation of loss of dependency has to be made under the second schedule of the MV Act after deducting one-third towards personal and living expenses. Since the minimum wages of an unskilled worker at that point of time was `3312/- , the total loss of dependency comes to (3312x2/3x12x17) `4,50,432/-. It appears that the tribunal ignored the non-pecuniary damages as specified in second schedule of the MV Act. Taking the said rate of `2000/- towards funeral expenses and `2500/- towards loss to estate, the total compensation in the case is computed as (4,50,432+4500) `4,54,932/-, rounded off to `4,55,000/-.
7. In above view, instead of being reduced, as claimed by the appellant, the award needs to be enhanced. It is enhanced as above. It is noted that the tribunal failed to levy interest on the compensation awarded. Following the consistent view taken by this Court [see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.], the amount shall carry interest @ 9% per annum from the date of filing of MAC APP. No. 544/2007 Page 3 of 4 the petition till realization. Needless to add, the amount earlier paid shall be suitably adjusted.
8. The insurance company is directed to deposit the enhanced portion of the award alongwith that payable due to levy of interest with the tribunal within 30 days of this judgment, whereupon it shall be released to the claimant.
9. The appeal is disposed of in above terms.
R.K. GAUBA (JUDGE) MAY 06, 2016 ssc MAC APP. No. 544/2007 Page 4 of 4