MAC.APP./481/2014 of NEW INDIA ASSURANCE COMPANY LTD Vs MAHAVIR SINGH & ORS

$~17 & 18

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 28[th] April, 2016

+ MAC.APP. 481/2014

NEW INDIA ASSURANCE COMPANY LTD

..... Appellant

Through Mr. Ravinder Singh and Mr. Maheen Pradhan, Advs.

versus MAHAVIR SINGH & ORS ..... Respondent Through Ms. Rupika Singh, Adv. for R-1 & 2 + MAC.APP. 500/2014 & CM No.9356/2014NEW INDIA ASSURANCE COMPANY LTD ..... Appellant Through Mr. Ravinder Singh and Mr. Maheen Pradhan, Advs. versus

RAKESH KUMAR & ORS

..... Respondent

Through None

CORAM:HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

R.K.GAUBA, J (ORAL):

1.Narender Kumar and Rakesh Kumar suffered injuries in motor vehicular accident that occurred on 23.03.2011 involving motor vehicle

described as Tata Magic Gramin Sewa bearing registration No.DL 2W 2971 (offending vehicle) admittedly insured against third party risk for the period in question with the appellant insurance company (insurer). Narender Kumar died as result of injuries suffered. Two claim petitions were filed before the motor accident claims tribunal (tribunal), one (MACP No.346/11) by the parents of Narender Kumar, and the other (MACP No. 878/11) by injured Rakesh Kumar, both instituted on 11.07.2011. The wife of Narender Kumar was shown in array of parties as fourth respondent. The insurer, the driver and owner of the offending vehicle were impleaded as respondents.

2.Both petitions were clubbed and common inquiry was held. The tribunal, by judgment dated 04.04.2014, accepted the case in both the petitions about the accident having been caused due to negligent driving of the offending vehicle.

3.In the death case, compensation in the sum of Rs.14,76,136/- was awarded with interest at 7.5% per annum from the date of filing of the petition, the amount inclusive of Rs.1 lakh each towards loss of love & affection and loss of consortium and ₹25,000/- towards loss of estate, the balance ₹12,41,136/- being added as loss of dependency after income was notionally assessed as ₹6,084/- (minimum wages of an unskilled worker) from which 1/3[rd] was deducted towards personal and living expenses but after adding 50% towards future prospects, applying the multiplier of 17.

4.In the injury case, compensation in the sum of ₹6,67,000/- was awarded in favour of Rakesh Kumar with interest at 7.5% per annum from the date of filing of petition till realization. The said amount includes

`1,04,500/- for loss of income, `3,11,220/- for future loss of earnings, `40,000/- for pain & suffering, `1,59,280/- for medicines and treatment, `20,000/- for conveyance & special diet, `22,000/- for attendant charges besides `10,000/- for loss of amenities. The tribunal accepted the evidence of Rakesh Kumar that he was employed with Aroon Aviation Services Pvt. Ltd. at salary of ₹9,500/-, this fact having been proved through Narender, Assistant Compliance Manager (PW5) of the employer company, also referring to salary slip (Ex.PW5/A). While calculating the loss of future earnings, in view of 15% functional disability (permanent) suffered in the right lower limb, the tribunal added 30% towards future prospects, having regard to the age (42 years) of the claimant.

5.The insurance company which has been fastened with the liability in both the cases has come up with these appeals only to raise one ground, common in both the matters. Its contention is that the addition of future prospects in the calculation was erroneous.

6.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 “fixed salary”. Though this viewwas affirmed by 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 larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.

7.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 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 in Reshma Kumari (Supra) as the binding precedent, till such time the law -on the subject of future prospects for those who are “selfemployed” or engaged in gainful employment at “fixed salary” is clarified by larger bench of the Supreme Court.

8.In the case of Narender Kumar (deceased), the argument of the insurance company must be upheld. There was no clear proof of his income. The claimant father had pleaded and tried to prove that the deceased was earning his livelihood by running two shops. The income from business, however, was not very reliable. In these circumstances, the tribunal proceeded to assume the income by adopting the minimum wages of an unskilled worker. There being no clear proof as to the progressive rise in income, the element of future prospects has to be kept out. Thus, the loss of dependency is recalculated. After deduction of 1/3[rd] towards personal & living expenses, the monthly loss of dependency comes to (6,084 x 2 ÷ 3) `4,056/-. On the multiplier of 17, the total loss of dependency comes to (4,056 x 12 x 17) `8,27,424/- rounded off to `8,30,000/-.

9.It is noted that the award towards loss of estate is low. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, compensation in the sum of `1 lakh each on account of loss of love & affection and loss of

consortium and `25,000/- each towards loss of estate and funeral expense are added. Thus, the total compensation in the case arising out of death of Narender Kumar is computed as (8,30,000 + 2,50,000) `10,80,000/-. The award is modified accordingly.

10.The case of claim for injury suffered by Rakesh Kumar, however, stands on different footing. The evidence with regard to employment and earnings therefrom clearly shows that there would have been progressive rise in salary from the employer. In these circumstances, the addition of element of future prospects cannot be grudged. The appeal against the award in the said case must be rejected.

11.It is noted, however, that the tribunal has levied interest only at 7.5% per annum in both cases. 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 rate of interest is increased to 9% per annum from the date of filing of the petition till realization in each case.

12.The awards are modified accordingly.

13.In both the appeals, by identical orders passed on 26.05.2014, the insurance company had been directed to deposit the entire awarded amounts with up-to-date interest with the Registrar General within the period specified. Out of the said deposit 80% was allowed to be released, the balance having been kept in fixed deposit receipt with UCO Bank for period of one year, to be renewed periodically. The Registrar General is directed to calculate the amount payable to the claimants in each of these cases in terms of the awards modified as above and release the same to the

respective claimant. If the amount is found to be deposited in excess, the same shall be refunded. Conversely, if amount is found to be outstanding the insurer shall deposit the same with the tribunal within 30 days for it to be released.

14.Statutory amounts, if deposited, shall be refunded.

15.The appeals are disposed of in above terms.

APRIL 28, 2016 VLD

R.K. GAUBA (JUDGE)