MAC.APP./1062/2011 of BAJAJ ALLIANZ GENERAL INSURANCE CO LTD Vs MEENAKSHI & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAC.APP. 1062/2011

Date of decision: 30[th] May, 2012

BAJAJ ALLIANZ GENERAL INSURANCE CO LTD

..... Appellant Through: Ms. Neerja Sachdeva, Advocate

versus

MEENAKSHI & ORS ..... Respondent Through: Mr. S.N. Parashar, Advocate

+ MAC.APP. 654/2012

MEENAKSHI & ORS ..... Appellants Through:

Mr. S.N. Parashar, Advocate

versus

BAJAJ ALLIANZ GENERAL INSURANCE CO LTD

..... Respondent Through: Ms. Neerja Sachdeva, Advocate

CORAM: HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)CM APPL.10149/2012 (Cross Objections)

These are Cross Objections filed by the Claimants in MAC APP.1062/2011. The application is allowed.

The same be registered as MAC APP.

MAC.APP. 1062/2011 and MAC APP.654/2012

1.These two Cross Appeals (MAC APP.1062/2011 and MAC APP.654/2012) arise out of judgment dated 19.07.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of ` 8,00,260/- was awarded for the death of Smt. Saroj Devi who died in motor accident which occurred on 05.07.2008. APP.654/2012) arise out of judgment dated 19.07.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of ` 8,00,260/- was awarded for the death of Smt. Saroj Devi who died in motor accident which occurred on 05.07.2008.

2.During inquiry before the Claims Tribunal it was claimed that the deceased was engaged in the work of tailoring and knitting and used to earn `5,000/- per month. In the absence of any proof of deceased’s earning, the Claims Tribunal took the minimum wages of skilled worker, added 50% towards the future prospects to compute the loss of dependency. the deceased was engaged in the work of tailoring and knitting and used to earn `5,000/- per month. In the absence of any proof of deceased’s earning, the Claims Tribunal took the minimum wages of skilled worker, added 50% towards the future prospects to compute the loss of dependency.

3.It is urged by the learned counsel for the Insurance Company that the Claims Tribunal erred in taking the income of the deceased as `4057/- per month. The Claims Tribunal ought to have decided the case on the basis of the law laid down in Arun Kumar Agrawal & Anr. v. National Insurance Company Limited., (2010) 9 SCC 218 and Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197.that the Claims Tribunal erred in taking the income of the deceased as `4057/- per month. The Claims Tribunal ought to have decided the case on the basis of the law laid down in Arun Kumar Agrawal & Anr. v. National Insurance Company Limited., (2010) 9 SCC 218 and Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197.

4.On the other hand, it is urged by the learned counsel for the Claimants that on rejection of the Appellant’s plea that the deceased was engaged in the tailoring work and was earning Claimants that on rejection of the Appellant’s plea that the deceased was engaged in the tailoring work and was earning

`5,000/- per month, they were entitled to compensation for loss of gratuitous services rendered by the deceased as housewife.

5.I would agree with the learned counsel for the Claimants.

6.This Court in Royal Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors., MAC.APP. 590/2011, decided on 30[th] January, 2012 noticed the following judgments of the Supreme Court:-Master Manmeet Singh & Ors., MAC.APP. 590/2011, decided on 30[th] January, 2012 noticed the following judgments of the Supreme Court:-

(i)General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176, Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,

(ii)National Insurance Company Limited v. Deepika & Ors., 2010 (4) ACJ 2221,2010 (4) ACJ 2221,

(iii)Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1, Del 1,

(iv)Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,SCC 197,

(v)Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 SC 1, & Ors., AIR 1962 SC 1,

(vi)A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,MANU/AP/0303/1988,

(vii)Morris v. Rigby (1966) 110 Sol Jo 834 and

(viii)Regan v. Williamson 1977 ACJ 331 (QBD England),

and laid down the principles for determination of loss of dependency on account of gratuitous services rendered by housewife. Para 34 of the judgment in Master Manmeet Singh (supra) is extracted hereunder:-

“34. To sum up, the loss of dependency on account of gratuitous services rendered by housewife shall be:-

(i) Minimum salary of Graduate where she is Graduate. Graduate.

(ii) Minimum salary of Matriculate where she is Matriculate. Matriculate.

(iii)Minimum salary of non-Matriculate in other cases. cases.

(iv)There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years. income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.

(v) When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years. but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.

(vi)If housewife dies issueless, the contribution towards the gratuitous services is much less, as -towards the gratuitous services is much less, as -there are greater chances of the husband’s remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above. marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.

(vii)There shall not be any deduction towards the personal and living expenses. personal and living expenses.

(viii)As an attempt has been made to compensate the loss of dependency, only notional sum which may be upto ` 25,000/- (on present scale of the money value) towards loss of love and affection and ` 10,000/- towards loss of consortium, if the husband is alive, may be awarded. loss of dependency, only notional sum which may be upto ` 25,000/- (on present scale of the money value) towards loss of love and affection and ` 10,000/- towards loss of consortium, if the husband is alive, may be awarded.

(ix)Since homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.”earning, no amount should be awarded towards loss of estate.”

7.15). 15).

Thus, applying the ratio in Master Manmeet Singh (supra), the

loss of dependency comes to ` 8,60,850/- (3826/- + 25% x 12 x

8.The Claims Tribunal awarded sum of `50,000/- towards loss of love and affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only ` 25,000/- (in total to all the claimants) under the head of loss of love and of love and affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only ` 25,000/- (in total to all the claimants) under the head of loss of love and

affection. Thus, I would reduce the compensation under this head from `50,000/- to ` 25,000/- only.

9.Further, on adding sum of `10,000/- towards funeral expenses, the overall compensation comes to `8,95,850/- (8,60,850/- + 35,000/-). (Since the deceased Saroj Devi’s husband died in this very accident, no compensation towards loss of consortium has been awarded).

10.The overall compensation thus enhanced from `8,00,260/- to `8,60,850/- (including the interim compensation of `50,000/-), which shall carry interest @ 7.5% per annum from the date of filing of the Petition till its deposit. `8,60,850/- (including the interim compensation of `50,000/-), which shall carry interest @ 7.5% per annum from the date of filing of the Petition till its deposit.

11.Respondent Insurance Company is directed to deposit the excess amount along with proportionate interest in the name of the Claimants in UCO Bank, Delhi High Court, New Delhi within six weeks. excess amount along with proportionate interest in the name of the Claimants in UCO Bank, Delhi High Court, New Delhi within six weeks.

12.The enhanced compensation of `60,590/- along with the proportionate interest shall be equally payable to the Respondents No.1 and 2 (the Claimants). proportionate interest shall be equally payable to the Respondents No.1 and 2 (the Claimants).

13.The compensation already deposited shall be released in terms of the order passed by the Claims Tribunal. of the order passed by the Claims Tribunal.

14.The statutory amount of `25,000/- be refunded to the Appellant Insurance Company in MAC APP.1062/2011. Insurance Company in MAC APP.1062/2011.

15.MAC APP.1062/2011 is dismissed and MAC APP.654/2012 filed by the Claimants is allowed in above terms. filed by the Claimants is allowed in above terms.

16.Pending applications also stand disposed of.

MAY 30, 2012 vk

(G.P. MITTAL) JUDGE