Kamla & Anr. Vs.new India Assurance Co. Ltd. & Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1207796
CourtDelhi High Court
Decided OnAug-10-2017
AppellantKamla & Anr.
RespondentNew India Assurance Co. Ltd. & Ors
Excerpt:
$~9 * in the high court of delhi at new delhi decided on:10. h august, 2017 + mac appeal no.528/2015 & cm no.14309/2017 kamla & anr. ..... appellants through: mr. anshuman bal, adv. versus new india assurance co. ltd. & ors........ respondents through: ms. seerat singh, adv. for r-1. mr. manoj kumar, adv. for r coram: hon'ble mr. justice r.k.gauba judgment (oral) 1. badshah khan, 22 year old, a bachelor, son of the appellants (collectively the claimants) died in motor vehicular accident that occurred on 14.04.2013 due to negligent driving of car no.dl8s2416 admittedly insured against third party risk for the period in question with the first respondent (insurer). the appellants filed accident claim case (suit no.245/2014), impleading the insurer, owner and driver of the car, the last two being second and third respondents in appeal.2. after inquiry, the claim petition was decided, by judgment dated 04.04.2015, and the claim for compensation on the principle of fault liability was accepted, such finding having attained finality. the tribunal awarded compensation in the sum of rs. 7,37,000/- and mac appeal no.528/2015 page 1 of 4 fastened the liability on the insurer with interest @ 9% per annum, there being no case made out for breach of terms and conditions of the policy.3. the appeal at hand by the claimants seeks enhancement. since liability was fastened against the insurer, the presence and service of other respondents are dispensed with. the claimants press for consideration two contentions, one that the element of future prospects should have been added and the other that the non-pecuniary damages awarded in the sum of rs. 1 lakh towards loss of love & affection, rs. 10,000/- towards loss of estate and rs. 25,000/- towards funeral expenses are deficient.4. while the second submission must be accepted, the first must be rejected.5. in the case reported as sarla verma & ors. vs. delhi transport corporation & anr., (2009) 6 scc121 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 a “fixed salary”. though this view was affirmed by a bench of three hon’ble judges in reshma kumari & ors. vs. 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 scc54 the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in national insurance company ltd. vs. pushpa & ors., (2015) 9 scc166 mac appeal no.528/2015 page 2 of 4 6. 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 a 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 “self-employed” or engaged in gainful employment at a “fixed salary” is clarified by a larger bench of the supreme court.7. the claimants were unable to bring home any clear proof as to the nature of avocation, educational or professional qualifications or extent of earnings of the deceased. therefore, the tribunal was constrained to adopt the minimum wages as the benchmark. the calculation of loss of dependency has been correctly made without the element of future prospects.8. following the dispensation by this court in mac.app.no.160/2015 shriram general insurance co ltd v. usha decided by this court on 05.05.2016, the accident having occurred in april, 2013, compensation towards loss of love & affection is increased to rs. 1,50,000/- and compensation towards loss to estate and funeral expenses is modified to rs. 50,000/- each. this would mean the award needs to be enhanced by rs. 1,15,000/-. ordered accordingly. the enhanced portion shall also carry interest @ 9% as levied by the tribunal. the said amount shall be payable to the first mac appeal no.528/2015 page 3 of 4 appellant (mother) for it to be released to her in the form of fixed deposit receipt for a period of seven years with right to draw monthly interest.9. the appeal is disposed of in above terms. r.k.gauba, j.august10 2017 nk mac appeal no.528/2015 page 4 of 4
Judgment:

$~9 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:

10. h August, 2017 + MAC APPEAL No.528/2015 & CM No.14309/2017 KAMLA & ANR. ..... Appellants Through: Mr. Anshuman Bal, Adv. versus NEW INDIA ASSURANCE CO. LTD. & ORS........ RESPONDENTS

Through: Ms. Seerat Singh, Adv. for R-1. Mr. Manoj Kumar, Adv. for R

CORAM: HON'BLE MR. JUSTICE R.K.GAUBA JUDGMENT (ORAL) 1. Badshah Khan, 22 year old, a bachelor, son of the appellants (collectively the claimants) died in motor vehicular accident that occurred on 14.04.2013 due to negligent driving of car No.DL8S2416 admittedly insured against third party risk for the period in question with the first respondent (insurer). The appellants filed accident claim case (suit No.245/2014), impleading the insurer, owner and driver of the car, the last two being second and third respondents in appeal.

2. After inquiry, the claim petition was decided, by judgment dated 04.04.2015, and the claim for compensation on the principle of fault liability was accepted, such finding having attained finality. The tribunal awarded compensation in the sum of Rs. 7,37,000/- and MAC Appeal No.528/2015 Page 1 of 4 fastened the liability on the insurer with interest @ 9% per annum, there being no case made out for breach of terms and conditions of the policy.

3. The appeal at hand by the claimants seeks enhancement. Since liability was fastened against the insurer, the presence and service of other respondents are dispensed with. The claimants press for consideration two contentions, one that the element of future prospects should have been added and the other that the non-pecuniary damages awarded in the sum of Rs. 1 lakh towards loss of love & affection, Rs. 10,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses are deficient.

4. While the second submission must be accepted, the first must be rejected.

5. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC121 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 a “fixed salary”. Though this view was affirmed by a bench of three Hon’ble Judges in Reshma Kumari & Ors. Vs. 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 SCC54 the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC166 MAC Appeal No.528/2015 Page 2 of 4 6. 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 a 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 “self-employed” or engaged in gainful employment at a “fixed salary” is clarified by a larger bench of the Supreme Court.

7. The claimants were unable to bring home any clear proof as to the nature of avocation, educational or professional qualifications or extent of earnings of the deceased. Therefore, the tribunal was constrained to adopt the minimum wages as the benchmark. The calculation of loss of dependency has been correctly made without the element of future prospects.

8. Following the dispensation by this Court in MAC.APP.No.160/2015 Shriram General Insurance Co Ltd v. Usha decided by this court on 05.05.2016, the accident having occurred in April, 2013, compensation towards loss of love & affection is increased to Rs. 1,50,000/- and compensation towards loss to estate and funeral expenses is modified to Rs. 50,000/- each. This would mean the award needs to be enhanced by Rs. 1,15,000/-. Ordered accordingly. The enhanced portion shall also carry interest @ 9% as levied by the tribunal. The said amount shall be payable to the first MAC Appeal No.528/2015 Page 3 of 4 appellant (mother) for it to be released to her in the form of fixed deposit receipt for a period of seven years with right to draw monthly interest.

9. The appeal is disposed of in above terms. R.K.GAUBA, J.

AUGUST10 2017 nk MAC Appeal No.528/2015 Page 4 of 4