Delhi High Court
Icici Lombard General Insurance ... vs Smt. Renu And Ors on 12 March, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th March, 2015
+ MAC. APP. No.1140/2011
ICICI LOMBARD GENERAL INSURANCE
COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
Versus
SMT. RENU AND ORS ..... Respondents
Through: Mr. S.N. Parashar, Adv. for R-1 to 7.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Respondents no.8 and 9 have not been served. The counsel for the
appellant states that they are not necessary parties and may be deleted from
the array of respondents. Accordingly, respondents no.8 and 9 are deleted
from the array of respondents without going into the aspect whether they are
necessary parties and at the risk of the appellant.
2. The appeal impugns the award / judgment dated 7 th October, 2011 of
the MACT (South-01) in Suit No.957/2008 (Unique Case ID
No.02403C0970712008) awarding a compensation of Rs.12,74,000/-
(inclusive of interim award if any) to the claimants with interest @ 7.5% per
annum from the date of filing of the petition i.e. 11 th December, 2008 till its
MAC.APP. No.1140/2011 Page 1 of 13
realisation, against the appellant / insurer of the vehicle which caused the
death.
3. Notice of the appeal was issued and subject to the deposit of the
award amount with upto date interest with the Registrar General of this
Court, the execution of the award was stayed. The counsel for the appellant
states that the amount was so deposited. Vide order dated 30 th April, 2012 in
this appeal, 50% of the amount so deposited was ordered to be released in
favour of the claimants (respondents no.1 to 7 herein) and Trial Court record
was requisitioned and the appeal directed to be listed in the category of
'After Notice Miscellaneous Matters' for final disposal. The counsel for the
appellant and the counsel for the claimants have been heard.
4. One of the two contentions of the counsel for the appellant is that the
Tribunal in the impugned order in para 10, has computed the compensation
on the premise of the deceased earning wages of Rs.6,000/- per month. It is
contended that there was no evidence whatsoever to establish that the
deceased was earning wages of Rs.6,000/- per month and the only document
produced in this regard was the daily sales report of the establishment, in
MAC.APP. No.1140/2011 Page 2 of 13
which the deceased was working, having signature of the deceased as
Salesman.
5. The only other contention is that the Tribunal in the same paragraph
10 of the impugned order has computed the compensation construing a 50%
monthly increase in the income of the deceased. Attention in this regard is
invited to ground „D‟ of the Grounds of Appeal where paragraph 24 of Sarla
Verma Vs. D.T.C. (2009) 6 SCC 121 has been reproduced. On a reading of
the said paragraph it is contended that an addition of 50% of the actual
salary income of the deceased towards future prospects is permitted only
where, (i) the deceased had a permanent job; and, (ii) the deceased was
below 40 years of age. It is argued that though the deceased in the present
case was 28 years of age but there is no evidence that he had a permanent
job. The counsel contends that in such a situation, no increase on account of
future prospects should have been considered in computing the
compensation. It is further contended that the judgment in Sarla Verma of a
Bench of two Judges has been re-affirmed by a three Judges Bench in
Reshma Kumari Vs. Madan Mohan (2013) 9 SCC 65. However the counsel
is not carrying copies of either of the two judgments.
MAC.APP. No.1140/2011 Page 3 of 13
6. The counsel for the claimants (respondents no.1 to 7) has per contra
referred to Rajesh Vs. Rajbir Singh 2013 (6) SCALE 563 in para 11 of
which the Supreme Court has held that in the case of self-employed 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.
7. I have considered the rival contentions.
8. The Tribunal, in para 10 of the impugned award / judgment has
recorded that according to the claimants the deceased used to work as
salesman and was earning Rs.12,000/- per month and of which Rs.6,000/-
per month was from Quick Eats at Plot No.13, PACC, City, Part No.1,
Sector-37, Gurgaon, Haryana and the remaining Rs.6,000/- per month was
from a Grocery Shop situated at 201, 30 foota road, Kamal Vihar, Karawal
Nagar Delhi. However the Tribunal, on a scrutiny of the record found that
the claimants had placed on record only daily sales report of Quick Eats
having signatures of the deceased as salesman and there was no challenge by
the appellant or by the owner or driver of the vehicle to the said sales report
which had been proved as Ex.PW1/X and which was thus presumed to be
correct. The Tribunal further held that since there was no documentary proof
MAC.APP. No.1140/2011 Page 4 of 13
of the deceased having additional income of Rs.6,000/- per month from the
Grocery Shop, the income of the deceased could be accepted at Rs.6,000/-
per month only.
9. I may record that the counsel for the appellant has not challenged the
finding of the Tribunal to the extent that the deceased was employed with
Quick Eats. The only question which remains is as to what were the wages
of the deceased. I have enquired from the counsel for the appellant whether
the appellant had cross examined the claimants on the aspect of the deceased
earning Rs.6,000/- per month from M/s. Quick Eats.
10. The counsel for the appellant states that she has not examined the
record of the MACT in this regard.
11. I have perused the grounds of appeal taken by the appellant in the
Memorandum of Appeal. I do not find the appellant to have therein also
taken a ground that the evidence of the claimants of the deceased earning
Rs.6,000/- per month from M/s. Quick Eats was challenged by the appellant
in cross examination of the claimants. In the absence of the appellant having
cross examined the claimant on the said part of cross examination of the
MAC.APP. No.1140/2011 Page 5 of 13
claimants and without taking a ground to this effect in the Memorandum of
Appeal it is not open to the appellant to urge the said argument in appeal.
12. I have further enquired from the counsel for the appellant whether the
appellant had made any enquiry as to the wages being earned by the
deceased and given any evidence on this aspect. Though the counsel for the
appellant does not reply to the said question but contends that the onus was
on the claimants and upon the claimants not discharging the said onus the
compensation has to be computed on the basis of minimum wages.
13. However the counsel is unable to tell the minimum wages also of the
relevant time nor is any such ground taken in the Memorandum of Appeal.
14. I am in the circumstances not inclined to interfere with the finding of
the Tribunal, before which evidence was recorded, assessing the
compensation on the premise that the deceased was earning wages of
Rs.6,000/- per month. The appellant cannot, after the conclusion of trial rely
only on the doctrine of onus to defeat a claim of compensation. A perusal of
the Trial Court record requisitioned in this Court shows the claimants to
have in Para No.23(vii) of the claim petition itself having pleaded that the
deceased was working as salesperson and also running a grocery shop and
MAC.APP. No.1140/2011 Page 6 of 13
was earning Rs.6,000/- per month from each job every month. The
appellant in its written statement to the said claim petition though had taken
preliminary objections but not with respect to the income of the deceased
and in the corresponding para No.23 is not found to have specifically denied
the plea in para No.23(vii) that the deceased was so earning Rs.12,000/- per
month. The appellant in the written statement, after specifically denying the
averments in some of the other sub-paragraphs of para No.23 of the claim
petition, stated "rest of the para is wrong and denied and the petitioner be put
to strict proof of each and every averments therein." In my opinion, when
specific pleadings as to employment and earnings are made in a claim
petition, it was incumbent upon the appellant (who was defending the said
claim petition) to make inquiries and if found the averments to be false,
specifically deny the same. Without the defendant in a claim petition doing
so and inspite of contesting the claim petition, the Tribunal was justified in
drawing an inference that the appellant had not challenged the income of the
deceased specifically pleaded in the claim petition, unless there was
anything to prevent the Tribunal from drawing such an inference. In fact, a
perusal of the Trial Court file also reveals that though the widow aged 23
years of the deceased in her examination-in-chief had again given specific
MAC.APP. No.1140/2011 Page 7 of 13
particulars with respect to the employment of the deceased, in the cross
examination, save for the suggestion that what she had deposed was wrong,
nothing further was controverted. It is further found that the appellant did
not even choose to lead any evidence of its own. In these circumstances,
there was no impediment to the Tribunal drawing the inference as aforesaid.
15. There is another aspect of the matter. It is also the pleading and in
evidence of the claimants that the deceased was supporting a family of father
aged 55 years, mother aged 53 years, widow aged 23 years, a minor son
aged 1½ years and three minor brothers aged 16, 14 and 12 years. It is also
not in dispute that the deceased possessed a licence for driving a motorcycle
and light motor vehicles and at the time of the accident was driving on his
motorcycle. All these facts are also indicative of the income of the deceased
being not less than Rs.6,000/- per month.
16. As far as the second contention of the counsel for the appellant is
concerned, I find that Supreme Court in Sarla Verma (supra) was concerned
about different Courts in different judgments adopting different percentages
of increase in income towards future prospects and held that, as a rule of
thumb, an addition of 50% of actual salary to the actual salary income of the
deceased towards future prospects should be made for computing
MAC.APP. No.1140/2011 Page 8 of 13
compensation on account of future prospects where the deceased had a
permanent job and was below 40 years of age. The addition, when the
deceased was 40 to 50 years of age was prescribed as of 30% and no
addition was prescribed where the deceased was more than 50 years of age.
It was further held that where the deceased was self-employed, the Courts
will usually take only the actual income at the time of death. In Santosh
Devi Vs. National Insurance Company Ltd. (2012) 6 SCC 421, the
Supreme Court found it difficult to fathom any rationale for the observation
in Sarla Verma that where the deceased was self-employed or on a fixed
salary without provision for annual increments etc., the Courts will usually
take only the actual income at the time of death and held that it cannot be
said that the wages or total emoluments / income of a person who is self-
employed or is employed on a fixed salary without provision for annual
increment etc. would remain the same throughout his life. Judicial notice
was taken of the fact that salaries of those employed in private sector had
also increased manifold and it was held that Sarla Verma could not be held
as laying down that there will be no addition in the income of a person who
is self-employed or who is paid fixed wages. Thereafter, in Rajesh (supra),
Santosh Devi (supra) was held to have made Sarla Verma applicable also to
MAC.APP. No.1140/2011 Page 9 of 13
self-employed persons or to persons employed on a fixed wages and it was
further held that in case of self-employed or persons with fixed wages, in
case the deceased was below 40 years, there must be an addition of 50% of
the actual income of the deceased while computing future prospects.
17. When I analyse the facts of the present case in the light of the
aforesaid law laid down by the Supreme Court, even if the wages of the
deceased of Rs.6,000/- per month were to be fixed wages, without any
provision for yearly increment, the deceased being less than 40 years of age,
addition of 50% to the actual wages for computing future prospects will
have to be made.
18. The counsel for the appellant has also contended that the deceased
could not be said to be having a permanent job and for this reason
compensation towards future prospects ought not to have been computed on
the basis of 50% increase in income. I have wondered as to what can be
construed as „permanent employment‟. In common parlance it is only
employment with the government or with the public sector which is
understood as permanent. However in legal terms, there is no permanency
in employment in the government also. Employment even in the
government can be brought to an end by the government on account of
MAC.APP. No.1140/2011 Page 10 of 13
misconduct, closure of department etc. The same is the position in most of
the private sector also. In fact, as has been wisely said, it is only the change
which is permanent / constant, else nothing is permanent or constant in this
world. I am also unable to take a view that the Supreme Court, by use of the
expression "permanent job" in Sarla Verma (supra) while laying down the
thumb rule for the increase in income to be taken into account for computing
compensation on account of future prospects, intended to create two classes
of victims of fatal accidents, one government employees and the other
private employees. Such a classification would have no rationale / nexus
whatsoever to the computation payable on account of a motor accident.
Experience of life also shows that often the increases in wages are much
higher in the private sector than in the government. The purport of the
provisions of the Motor Vehicles Act, 1988 is to provide just compensation
and I am of the opinion that in computing such just compensation no
classification as aforesaid can be introduced.
19. I therefore do not find any merit in the second contention also of the
counsel for the appellant.
20. The counsel for the claimants / respondents No.1 to 7 has sought to
urge that non-pecuniary compensation under the heads of „loss of
MAC.APP. No.1140/2011 Page 11 of 13
consortium‟ and on account of love and affection of Rs.10,000/- and
Rs.30,000/- respectively awarded under the impugned award / judgment is
insufficient and should be enhanced.
21. The counsel for the claimants on enquiry states that though the
claimants have not preferred any appeal seeking enhancement or have not
filed any cross objections in this appeal but this Court is empowered to
enhance the compensation.
22. Undoubtedly so, but there must be at least something by which the
appellant should have notice that the claimants, at the time of hearing of the
appeal, intend to also seek enhancement; without the same, the appellant
cannot be taken by surprise.
23. Even in the facts and circumstances, I do not find any case for this
Court to suo motu exercise the power of enhancement.
24. The appeal is accordingly dismissed. The amount deposited by the
appellant in this Court and remaining after release of 50% thereof to the
claimants and together with further interest accrued thereon be released in
favour of the claimants in accordance with the award / judgment of the
Tribunal.
MAC.APP. No.1140/2011 Page 12 of 13
25. The counsel for the appellant states that the statutory amount of
Rs.25,000/- deposited in this Court at the time of filing of the appeal be
ordered to be refunded to the appellant.
26. The counsel for the claimants has no objection.
27. On enquiry it is told that the said amount does not earn any interest as
the same is kept in the CCD account.
28. I prima facie do not find any reason for the said statutory amounts to
be kept in the CCD account which is non-interest bearing. The worthy
Registrar of this Court to consider, whether the said statutory amounts can
be kept in interest bearing accounts / FDR rather than CCD account. A
decision in this regard be taken within a period of three months from today.
A copy of this order be forwarded to the Registrar General for compliance.
29. The amount of Rs.25,000/- be refunded to the appellant.
No costs.
RAJIV SAHAI ENDLAW, J.
MARCH 12, 2015 pp/gsr MAC.APP. No.1140/2011 Page 13 of 13