MAC.APP./819/2012 of NEW INDIA ASSURANCE COMPANY LTD Vs KAMLA RAO AND ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 11[th] December, 2012

+ MAC.APP. 819/2012

NEW INDIA ASSURANCE COMPANY LTD. ...... Appellant Through: Mr. Punit Vinay, Advocate

versus

SMT. KAMLA RAO & ORS.

.... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

1.The Appeal is for reduction of compensation of ` 12,22,416/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of Respondent No.1 for the death of her husband Madhav Rao. awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of Respondent No.1 for the death of her husband Madhav Rao.

2.The finding on negligence is not challenged by the Appellant Insurance Company. Thus, the same has attained finality. Insurance Company. Thus, the same has attained finality.

3.During inquiry before the Claims Tribunal, it was claimed that deceased Madhav Rao was doing private job in Safal Dairy and was earning ` 8,000/- per month. In the absence of any cogent evidence with regard to the deceased’s income, the Claims Tribunal took the minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act; added 30% towards inflation on the basis of report of the Supreme Court in Santosh Devi deceased Madhav Rao was doing private job in Safal Dairy and was earning ` 8,000/- per month. In the absence of any cogent evidence with regard to the deceased’s income, the Claims Tribunal took the minimum wages of an unskilled worker as fixed by the Govt. of NCT of Delhi under the Minimum Wages Act; added 30% towards inflation on the basis of report of the Supreme Court in Santosh Devi

v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 to compute the loss of dependency as ` 10,12,416/-.

4.The Claims Tribunal further awarded sum of ` 1,00,000/- towards loss of love and affection, `50,000/- each towards loss of consortium and loss to estate and `10,000/- towards funeral expenses to compute overall compensation as ` 12,22,416/-

5.The Claims Tribunal further awarded sum of ` 60,000/- towards counsel’s fee.counsel’s fee.

6.The following contentions are raised on behalf of the Appellant Insurance Company: Insurance Company:

(i)The First Respondent was the only dependent on the deceased; deduction towards personal and living expenses should have been one-half instead of one-third made by the Claims Tribunal. deceased; deduction towards personal and living expenses should have been one-half instead of one-third made by the Claims Tribunal.

(ii)Compensation of `1,00,000/- towards loss of love and affection and `50,000/- each towards loss of consortium and loss to estate is excessive and exorbitant. affection and `50,000/- each towards loss of consortium and loss to estate is excessive and exorbitant.

(iii)Award of compensation of `60,000/- towards counsel’s fee is arbitrary, excessive and exorbitant. is arbitrary, excessive and exorbitant.

(iv)Award of interest @ 9% is on the higher side.

LOSS OF DEPENDENCY

7.It is not in dispute that Respondent No.1 Smt.Kamla Rao was the only dependent on the deceased. The deceased Madhav Rao was claimed to be in private employment. In the absence of any evidence with dependent on the deceased. The deceased Madhav Rao was claimed to be in private employment. In the absence of any evidence with

regard to his income, the Claims Tribunal awarded the loss of dependency on Minimum Wages. Thus, it is not case where the deceased would be having enough to spare from his income so as to spend less than 50% on himself. The Claims Tribunal, therefore, erred in deducting 1/3 towards personal living and expenses. In the circumstances of the case, it would be appropriate to deduct 50% towards personal and living expenses.

NON-PECUNIARY DAMAGES

8.In this case, the Claims Tribunal awarded sum of ` 1,00,000/- 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 ` 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 to ` 25,000/-. 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 ` 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 to ` 25,000/-.

9.The Claims Tribunal further awarded sum of ` 50,000/- each towards loss of consortium and loss to estate. In Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, theSupreme Court laid down that only notional sum to the extent of `5,000/- to ` 10,000/- should be awarded under these heads. I would, therefore, reduce the compensation under these heads to ` 10,000/- each towards loss of consortium and loss to estate. towards loss of consortium and loss to estate. In Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, theSupreme Court laid down that only notional sum to the extent of `5,000/- to ` 10,000/- should be awarded under these heads. I would, therefore, reduce the compensation under these heads to ` 10,000/- each towards loss of consortium and loss to estate.

10.The Claims Tribunal awarded the interest @ 9% per annum. It is urged that the same is excessive. I would not agree. This accident urged that the same is excessive. I would not agree. This accident

took place in the year 2011, rate of interest in Nationalised Banks on long terms deposit since the year 2010 were in the vicinity of about 9%. In Dhaneshwari & Another v. Tajeshwar Singh & Others, MAC. APP 997/2011 decided on 19.3.2012, this Court held that awarding interest at less than 9% per annum is unreasonable, if the accident has taken place in 2010 or thereafter.

11.Loss of dependency thus comes to ` 7,59,283/-(6084/-+ 30% x 1/2 x 12 x16).

12.On making an addition sum of ` 25,000/- towards loss of love and affection and ` 10,000/- towards loss of consortium and loss to estate, the overall compensation comes to ` 8,04,283/-. affection and ` 10,000/- towards loss of consortium and loss to estate, the overall compensation comes to ` 8,04,283/-.

13.The Claims Tribunal while disposing of the Claim Petition awarded sum of `60,000/- towards counsel’s fee. This Court in ‘ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi & Ors.’ (MAC. APP. 645/2012) through which number of Appeals were decided on 30.07.2012, interpreted the Rules for awarding the costs while deciding Claim Petition. The counsel’s fee is payable only in terms of Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume 1 of the Delhi High Court Rules and subject to filing the certificate of fee. No such certificate has been filed by the counsel for the Respondents (Claimants). The order with regard to the payment of counsel fee is, therefore, set aside. sum of `60,000/- towards counsel’s fee. This Court in ‘ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi & Ors.’ (MAC. APP. 645/2012) through which number of Appeals were decided on 30.07.2012, interpreted the Rules for awarding the costs while deciding Claim Petition. The counsel’s fee is payable only in terms of Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume 1 of the Delhi High Court Rules and subject to filing the certificate of fee. No such certificate has been filed by the counsel for the Respondents (Claimants). The order with regard to the payment of counsel fee is, therefore, set aside.

14.The compensation is thus reduced from ` 12,22,416/- to ` 8,04,283/-

15.The Appeal is allowed in above terms.

16.Pending Applications also stand disposed of.

17.The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company. Insurance Company.

DECEMBER 11, 2012/v

(G.P. MITTAL) JUDGE