The New India Assurance Co. Ltd v. Sukh Shyam & Ors.

1. On 2O.O[7].20ll, Krishna Devi, then aged'39 yeahj died as a result of injuries suffered in a motor vehicular accident involyirignegligent driving of truck bearing registration,,:no.HRT245i)504';"^^^ offending vehicle), admittedly insured against third party risk with the appellant/insurance company (the insurer) for the period in question. Her children (first to fourth 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 dated 23.11.2012, found that the claimants had proved that the accident and death had occurred due to negligent driving of the offending vehicle. The MAC APP. No.110/2013 PageIof[4] 2016:DHC:8813 compensation in the sum of?12,90,708/- was awarded with interest at the rate ofseven & halfpercent(7.5%)per annum. The amount thus awarded includes ?10,000/- each towards funeral expenses and loss to estate and ?25,000/- towards loss oflove & affection, besides ^12,45,708/- calculated as loss ofdependency.

2. By appeal at hand,the insurer submits that the negligence on the part of the driver of the offending vehicle was not properly proved as conclusions have been drawn mainly on the basis of records of corresponding criminal case.. It,is also submitted that the income of the deceased was assumed at?7098/- equivalent to minimuni:wages payable at the relevant point oftime to a non-matriculate on which 30% was added towards future prospects which, in the submission of the insurer, was erroneous. I \ ' i'-'

3. Per contrg, the learned counsel for the claimants submitted that the awards under the'|ion-pecuniary heads ofdamans and the rate ofinterest are inadequate..

4. Having heard the learned counsel on bp^;sides and gone through the record, this court finds the argument on the plea of negligence to be frivolous. It is wrong to submitthatthe conclusions had been reached by the tribunal on the basis ofthe criminal court record. The son ofthe deceased (PWl)testified at the inquiry narrating the sequence ofevents. He was an eye witness to the occurrence and there is nothing in the cross-examination to doubt his veracity. Noticeably,no evidence in rebuttal was even offered. MACAPP.No.110/2013 Page 2of[4]

5. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.,(2009)6 SCC 121, Supreme Court, inter-alia, ruled thatthe element offuture prospects ofincrease 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 ofthree Hon'ble Judges in Reshma Kumari & Ors. Ks. Madan Mohan & Anr.,(2013)9 SCC 65,on account ofdivergence ofviews, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors.,(2013)9 SCC 54,the issue was later referred to a larger bench, inter-alia, by order dated 02.0X2014 in National Insurance Company Ltd. vs. Pushpa & Ors.,(2015)9SCC 16.6.l

6. Against the above backdrop,byjudgment dated 22.0f2016 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 singlejudge 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 ofthe Supreme Court.

7. Since the income was notionally assessed,the loss ofdependency has to be calculated without the element of future prospects. Thus, it is recomputed as(7098x2/3x12x15)?8,51,760/-,rounded offto ^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, MACAPP. No.1/0/2013 Page 3of[4] c 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 total compensation payable in the case comes to (8,52,000+ 1,50,000) 0,02,000/-.

9. Following the consistent view taken by this Court[seejudgment dated 22.02.2016 in MAC.APP. 165/2011 OrientalInsurance Co Ltd v. Sangeeta Devi & Ors.\ the rate ofinterest is increased to9% per annum from the date offiling ofthe petition till realization. >

10. By order dated 08.02.2013, while insurance company was directed to deposit the entire awarded amount with up-to-date interest with UCO Bank, Delhi High Court Branch, New Delhi within the period specified,60% was allowed to be released, the balance being kept in fixed deposit. The under the modified award and release the balance, refunding the excess, if any,with statutory deposit,ifmade to the insurer^

11. The appeal is disposed ofin above terms,. ' (JUDGE) MAY 11,2016 ssc MACAPP. No.110/2013 Page 4of[4]