United India Insurance Co Ltd v. Rajenderi Devi & Ors.

1. Yatish Kumar (born on 04.05.1984), concededly self-employed, suffered injuries in a motor vehicular accident that occurred on 03.06.2014 due to negligent driving of bus bearing registration No.UP-14-T-9050, admittedly insured against third party risk with the appellant insurance company (insurer) for the period in question and died in the consequence. The first to fourth respondents, being members of the family dependent on him (collectively, the claimants), instituted accident claim case (Suit No.515/2014) on 07.08.2015 seeking compensation. The tribunal, after inquiry, by the judgment dated 27.08.2015, awarded compensation in the total sum of Rs.26,83,000/-, calculating it thus:- 2017:DHC:5579

┌──────────────────────────────────────────────────────────────────────────┐
│ Sl.No.                      Head                  Amount in (Rs.)        │
├──────────────────────────────────────────────────────────────────────────┤
│      1.    Loss of dependency                             24,48,000/-    │
│      2.    Love and affection                               1,00,000/-   │
│      3.    Loss of consortium                               1,00,000/-   │
│      4.    Loss of estate                                     10,000/-   │
│      5.    Funeral Expenses                                   25,000/-   │
│                                           Total           26,83,000/-    │
│ 2.        The liability to the extent of above mentioned amount with     │
└──────────────────────────────────────────────────────────────────────────┘

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 12.01.2015, 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. Since the deceased was admittedly self-employed, there being no proof of any regular income, much less progressive rise therein, the element of future prospects of increase is kept out.

8. The tribunal correctly chose the multiplier of 17 since the deceased had just completed age of 30 years. It, however, committed error by deducting personal and living expenses to the extent of onethird, ignoring the fact that it was a case where four claimants had come up to seek compensation, they including father, whose presence seems to have been ignored in the calculation. The tribunal did not bear in mind that the first claimant (the mother) while appearing as a witness did testify that all the four persons were dependents. She even clarified during cross-examination that her husband (father of the deceased) would remain unwell. Since such evidence was not impeached, the claim on account of the father could not have been defeated. In this view, one-fourth is to be deducted towards personal and living expenses.

9. Thus calculated, the loss of dependency works out to (10,374/x 3/4 x 12 x 17) Rs.15,87,222/- rounded off to Rs.15,88,000/- (Rupees Fifteen Lakhs Eighty Eight Thousand Only).

10. Following the view taken in MAC.APP.No.160/2015 Shriram General Insurance Co Ltd v. Usha decided by this court on 05.05.2016, non-pecuniary heads of damages in the sum of Rs.1,50,000/- each towards loss of love & affection and towards loss of consortium and Rs.50,000/- each towards loss of estate and funeral expense are added. Hence, the total compensation payable in the case comes to (Rs.15,88,000/- + 1,50,000/- + 1,50,000/- + 50,000/- + 50,000/-) Rs.19,88,000/- (Rupees Ninteen Lakhs Eighty Eight Thousand Only).

11. The award is modified accordingly. It shall carry interest as levied by the tribunal.

12. By order dated 29.01.2016, the insurance company had been directed to deposit the entire awarded amount with interest with the tribunal, out of which, 60% (sixty percent) was allowed to be released to the claimants. The tribunal shall calculate the balance liable to be paid to the respective claimants and release the same from out of the remainder in deposit, refunding the excess to the insurance company.

13. The statutory amount shall be refunded.

14. This disposes of the appeal and pending applications. R.K.GAUBA, J. SEPTEMBER 18, 2017 vk