The New India Assurance Co. Ltd. v. Sangeeta & Ors.

1. Praveen Kumar, one month less than 24 years in age, suffered death on account of injuries sustained in a motor vehicular accident that occurred on 08.03.2010 due to negligent driving of a motor vehicle described as bearing registration no.DL-4CAE-9121 (the offending vehicle), concededly insured against third party risk with the appellant/insurance company (the insurer) for the period in question. An accident claim case (MACT case no.50/2012/2010) was instituted on 01.04.2010 invoking Sections 166 and 140 of the Motor Vehicles Act, 1988 (the MV Act) before the motor accident claims tribunal (the tribunal) by the first to fourth respondents (collectively, the claimants), in which the appellant/insurer was impleaded as party, in addition to driver and owner of the offending vehicle. It was 2016:DHC:3557 admitted before the tribunal that the vehicle was covered by a third party insurance policy but a case set up regarding breach of terms and conditions thereof.

2. The tribunal upheld the case that death had occurred due to negligent driving of the offending vehicle which finding not having been challenged has attained finality. By judgment dated 28.03.2013, the tribunal granted compensation in the sum of `16,08,760/- in favour of the claimants with interest at the rate of seven & half percent (7.5%) per annum from the date of filing petition till realization, the said amount inclusive of `25,000/towards loss of love & affection, `10,000/- each towards loss of consortium, loss of estate and cremation charges, besides `15,53,760/- calculated as loss of dependency with the multiplier of 18, after deduction of one third towards personal and living expenses (the claimant father admittedly being pensioner and thus not a dependant) on the income of `8300/- per month to which 30% was added as prospective increase in future. It is the last element of future prospects which is raised as the bone of contention in the present appeal. Per contra, the claimants submit through counsel that the award under the non-pecuniary heads of damages and rate of interest are inadequate.

3. The engagement of the deceased as an employee with M/s Gujarat Freight Carriers Regd., in the capacity of marketing supervisor since May, 2009 was proved by Pratap Singh (PW[4]), proprietor of the said entity, on the basis of attendance register and salary record. It is correct that the evidence does not show any progressive rise in the income.

4. 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 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 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 a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.

5. 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.

6. In the face of the evidence adduced, the element of future prospects cannot be added. The loss of dependency is, thus, calculated at (8300x2/3x12x18) `11,95,199/-, rounded off to `12,00,000/-.

7. The submissions of the claimants that the award under the nonpecuniary heads of damages and rate of interest are inadequate, is correct. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, awards of `1,00,000/- each on account of loss of consortium and loss of love & affection and `25,000/- each towards loss of estate and funeral expenses are added. Thus, the total compensation in the case comes to `14,50,000/-.

8. 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.

9. The award is modified as above.

10. By order dated 03.05.2013, the insurance company had been directed to deposit the entire awarded amount with up-to-date interest accrued thereupon with the Registrar General. On such deposit, 70% was allowed to be released, the balance to be kept in fixed deposit with UCO Bank, Delhi High Court branch, New Delhi initially for a period of six months to be renewed periodically. The Registrar General shall calculate the amount payable to the claimants in terms of the award modified as above and release the balance to them refunding the excess in deposit with statutory deposit, if made, to the insurance company.

11. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) MAY 05, 2016 ssc