$~R-259 & R-260 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 22nd September, 2017 + MAC APPEAL No. 749/2010 ANITA & ORS. Appellants Through: Mr. [ENTITY], Adv. versus CHAUHAN PUNAM SINGH RAJUSINGH & ORS. Respondents Through: Mr. [ENTITY] for Ms. [ENTITY], Adv. for R-3. + MAC APPEAL No. 807/2010 ICICI LOMBARD GENERAL INSURANCE CO. LTD Appellant Through: Mr. [ENTITY] for Ms. [ENTITY], Adv. versus ANITA & ORS. Respondents Through: Mr. [ENTITY], Adv. for R- 1 to 5. CORAM: HON'BLE MR. JUSTICE [ENTITY] JUDGMENT (ORAL)
1. [ENTITY], aged 32 years, while driving motorcycle bearing registration no. DL 9SC 8260, suffered injuries in motor vehicular accident that occurred on 12.04.2008 due to the said vehicle having been hit by truck bearing registration no. GJ 07UU 1398, admittedly insured against third party risk with the appellant insurance company (insurer) and died in the consequence. His wife and other members of the family dependent upon him, they now being appellants in [CASE NUMBER] (collectively, the claimants), instituted accident claim case ([CASE NUMBER]) on 01.05.2008. The tribunal, after inquiry, by judgment dated 05.08.2010, accepted the said claim under [SECTION] of [ACT] and awarded compensation directing the insurer of the offending vehicle (it now being appellant in [CASE NUMBER]) with interest @ 9% per annum, calculating it thus:-
S.No. Heads Compensatin 1. Loss of Dependency Rs. 8,86,000/- 2. Loss of Love & affection Rs. 1,50,000/- 3. Loss of consortium Rs. 10,000/- 4. Funeral Expenses Rs. 10,000/- 5. Los of Estate Rs. 10,000/- Total Rs. 10,66,000/-
2. Both the insurer and claimants are in appeal, the former taking exception to the calculation of loss of dependency with the element of future prospects of increase in income against an income notionally assessed and the latter submitting that the evidence of [ENTITY] (PW-3) should have been accepted and the income of Rs. 6500/- should have been the basis for such calculation. The claimants are also aggrieved with the non-pecuniary damages submitting that the same are deficient.
3. The tribunal has given sound reasons for rejecting the evidence of [ENTITY] (PW-3) proprietor of firm M/s Meenu Telecom & Travels where he claimed to have engaged the deceased as a driver. No records pertaining to the business of the said firm or even the vehicles that it owned, muchless deployment of the deceased on the same as a driver were proved. In these circumstances, the tribunal was constrained to calculate the loss of dependency with the help of minimum wages of a skilled worker.
4. In the case reported as [PRECEDENT], 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 [ENTITY] & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in [PRECEDENT], the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in [PRECEDENT].
5. Against the above backdrop, by judgment dated 22.01.2016 passed in [CASE NUMBER] ([PRECEDENT].), this Court has found it proper to follow the view taken earlier by a learned single judge in [CASE NUMBER] ([PRECEDENT] decided on 12.01.2015, presently taking the decision in [ENTITY] (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. Since there was no cogent evidence of regular employment of the deceased, the element of future prospects could not have been added. In these circumstances, the loss of dependency is re- calculated after deduction of 1/4th towards personal & living expenses and applying the multiplier of 16 correctly chosen by the tribunal as (4100 x 3 4 x 12 x 16) Rs. 5,90,400/-, rounded off to Rs. 5,91,000/- (Rupees Five Lakhs Ninety One Thousand Only).
7. In view of the rulings in [PRECEDENT] and [PRECEDENT], the non-pecuniary damages awarded by the tribunal are found to be inadequate. The compensation in the sum of Rs.1,00,000/- each on account of loss of love & affection and loss of consortium and Rs.25,000/- each towards loss of estate and funeral expense are added.
8. Thus, the total compensation payable in the case is computed as (5,91,000 + 1,00,000 + 1,00,000 + 25,000 + 25,000) Rs. 8,41,000/-
(Rupees Eight Lakhs Forty One Thousand Only). The award is modified accordingly. It shall carry interest as levied by the tribunal.
9. By order dated 29.11.2010 read with orders dated 15.03.2011, the insurance company was directed to deposit the entire awarded amount and from out of the same 75% (seventy five percent) was allowed to be released to the claimants. Since the tribunal specified the amounts falling to the share of the different claimants, the total award having been reduced, it is directed that the amounts already released to the claimants other than the widow ([ENTITY]), shall be treated as their respective share. The entire balance shall now go to the first claimant [ENTITY] alone.
10. The registry shall calculate the amounts payable to the claimant in terms of the modified award and release the balance to her from out of the remainder refunding the excess in deposit along with statutory deposit to the insurance company.
11. Both appeals are disposed of in above terms.
[ENTITY], J.
SEPTEMBER 22, 2017 nk