MAC.APP./110/2013 of THE NEW INDIA ASSURANCE CO.LTD. Vs SUKH SHYAM & ORS.

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of Decision: ll"* May, 2016

+MAC.APP. 110/2013

THE NEW INDIA ASSURANCE CO.LTD Appellant

Through: Mr. Shoumik Mazumdar & Mr.Pankaj Seth, Advs.

versus -

SUKH SHYAM & OR^ •' Respondents./ V El"??; .../ fV^^'through; ^i 'Mk s.'N ParasEaf, Adv. for R-1 to 4."NCORAM: .> "HON'BLE MR: justice R.K.GAUi^if

JUDGMENT ;i'■ ^ 4.

R.K.GAUBA. J (ORAL):

.X*.1. On 2O.O7.20l l, Krishna Devi, then aged'39 yeahj died as result ofinjuries suffered in motor vehicular accident involyirig negligent driving oftruck bearing registration,, :no.HRT245i)504';"^^^ offending vehicle),admittedly insured against third party risk with the appellant/insurancecompany (the insurer) for the period in question. Her children (first tofourth respondents) instituted an aecident claim case (case no.765/2011)seeking compensation under Sections 166 & 140 of the Motor Vehicles Act,1988 (the MY Act). The tribunal held inquiry and, by judgment dated23.11.2012, found that the claimants had proved that the accident and deathhad occurred due to negligent driving of the offending vehicle. The

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Signature Not Verified

compensation in the sum of ?12,90,708/- was awarded with interest at therate of seven & half percent (7.5%) per annum. The amount thus awardedincludes ?10,000/- each towards funeral expenses and loss to estate and?25,000/- towards loss of love & affection, besides ^12,45,708/- calculatedas loss of dependency.

2. By appeal at hand, the insurer submits that the negligence on the partof the driver of the offending vehicle was not properly proved asconclusions have been drawn mainly on the basis of records ofcorresponding criminal case. . It , is also submitted that the income of thedeceased was assumed at ?7098/- equivalent to minimuni:wages payable atthe relevant point of time to non-matriculate on which 30% was addedtowards future prospects which, in the submission of the insurer, waserroneous. I\' i'- '3. Per contrg, the learned counsel for the claimants submitted that theawards under heads of damans and the rate of interestthe'|ion-pecuniary are inadequate. .

4. Having heard the learned counsel on bp^; sides and gone through therecord, this court finds the argument on the plea of negligence to befrivolous. It is wrong to submit that the conclusions had been reached by thetribunal on the basis of the criminal court record. The son of the deceased(PWl) testified at the inquiry narrating the sequence of events. He was aneye witness to the occurrence and there is nothing in the cross-examinationto doubt his veracity. Noticeably, no evidence in rebuttal was even offered.

5. In the case reported as Sarla Verma & Ors. vs. Delhi TransportCorporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruledthat the element of future prospects of increase in income will not be grantedin cases where the deceased was "self employed" or was working on a"fixed salary". Though this view was affirmed by bench of three Hon'bleJudges in Reshma Kumari & Ors. Ks. Madan Mohan & Anr., (2013) 9 SCC65, 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 alarger bench, inter-alia, by order dated 02.0X2014 in National InsuranceCompany Ltd. vs. Pushpa & Ors., (2015) 9 SCC 16.6.l

6. Against the above backdrop, by judgment dated 22.0f2016 passed inMAC Appeal No. 956/2012 {Sunil Kumar v. Pyar Mohd.), this Court hasfound it proper to follow the view taken earlier by learned single judge inMAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v.Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decisionin Reshma Kumari (Supra) as the binding precedent, till such time the lawon the subject of future prospects for those who are "self-employed" orengaged in gainful employment at "fixed salary" is clarified by largerbench of the Supreme Court.

7. Since the income was notionally assessed, the loss of dependency hasto be calculated without the element of future prospects. Thus, it isrecomputed as (7098x2/3x12x15) ?8,51,760/-, rounded off to ^8,52,000/-.

8. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,

the award of ^1,00,000/- towards loss of love & affection and ^25,000/-each towards loss of estate and funeral expense are added. Thus, the totalcompensation payable in the case comes to (8,52,000+ 1,50,000)0,02,000/-.

9. Following the consistent view taken by this Court [see judgment dated22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. SangeetaDevi & Ors.\ the rate of interest is increased to 9% per annum from the dateof filing of the petition till realization. >

10. By order dated 08.02.2013, while insurance company was directed todeposit the entire awarded amount with up-to-date interest with UCO Bank,Delhi High Court Branch, New Delhi within the period specified, 60% wasallowed to be released, the balance being kept in fixed deposit. TheRegistrar General shall now calculate the amount payable to the claimantsunder the modified award and release the balance, refunding the excess, ifany, with statutory deposit, if made to the insurer^

11. The appeal is disposed of in above terms,. '

(JUDGE)

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