Future Generali India Insurance Co. Ltd. v. Nisha Devi

1. Mr. Sudhir Kumar, aged 28 years, died as a result of injuries suffered in a motor vehicular accident that occurred at about 11.30 p.m. on 11.04.2012 involving negligent driving of motor vehicle described as DL- 1RL-2681 (offending vehicle), admittedly insured against third party risk with the appellant insurance company (insurer). The dependant family members of Mr. Sudhir Kumar instituted an accident claim case (M.A.C.P No. 133/2012) on 03.07.2012 seeking compensation under Sections 166 and 2016:DHC:3173 140 of Motor Vehicles Act, 1988 (M.V. Act), before the Motor Accident Claims Tribunal (in short, the Tribunal). Besides the insurer, driver and owner of the offending vehicle were also impleaded as parties. The Tribunal, by judgment dated 04.06.2013, upheld the case of death having occurred due to negligent driving of the offending vehicle. It assessed the compensation payable in the case at ₹16,67,080/- calculating it as under:- “..1. Loss of dependency (7020/- x 12 x 17) = ₹14,32,080/-

2. Loss of Love and affection = ₹1,00,000/-

3. For funeral expenses = ₹25,000/-

4. Loss of estate = ₹10,000/-

5. Loss of consortium = ₹1,00,000/- TOTAL = ₹16,67,080/-..”

6. The Tribunal directed the insurance company to pay the aforesaid amount with interest levied at 7.5% p.a. from the date of filing of the petition till realization.

7. The Insurance company is in appeal questioning the computation of loss of dependency on the ground that the income of the deceased was notionally assessed at ₹7020/- (it being the minimum wages payable to an unskilled worker at the relevant point of time) to which future prospects of increase to the extent of 50% were added to which exception has been taken.

8. 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.

9. 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.

10. The contention of the insurance company must be upheld. The loss of dependency has to be worked out without taking the element of future prospects. Since the number of claimants were two, personal and living expenses have to be deducted to the extent of 1/3rd. The monthly loss of dependency, thus, comes to (7020 x 2 / 3) ₹4680/- and with the multiplier of 17, rightly adopted by the Tribunal, the total loss of dependency comes to ₹9,54,720 ( ₹4680 x 12 x 17), rounded off to ₹9,55,000.

11. It is noted that the amount awarded towards loss of estate at ₹10,000/- is inadequate. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the said amount is to be raised to ₹25,000/-. Thus, the total compensation payable in the case comes to (₹955000/- + ₹25000/-) `9,80,000/-.

12. Following the consistent view taken by this court, the rate of interest is increased to 9% p.a. from the date of filing of the petition till its payment. (See judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.).

13. The Tribunal had apportioned an amount of ₹6 Lakh in favour of the second claimant (second respondent), the mother of the deceased, giving the balance of the amount awarded by it, in favour of the first claimant (widow of the deceased). Since the awarded amount has been reduced, their respective shares will also have to be suitably adjusted. In this view, share of the second claimant (mother) is reduced to ₹5 Lakh, the balance be payable to the first claimant (widow), both of course, with proportionate interest.

14. By order dated 05.08.2013, the insurance company had been directed to deposit the entire awarded amount with upto date interest with the 80% was allowed to be released to the claimants. The Registrar General shall now calculate their respective claims in terms of the award modified above and release the same forthwith refunding the balance with statutory deposit, if made, in favour of the insurance company.

16. The appeal is disposed of, in the aforesaid terms.