Partly allowed

Baljinder Kaur & Ors. v. Bajaj Allianz General Insurance Co. Ltd. & Ors.

Delhi HC5 Dec 2017MAC.APP./197/2016

Case brief

AI extract

What is this about?

The High Court allowed the appellant insurer's appeal in part, increasing compensation from Rs. 5,27,000 to Rs. 7,35,000 following the Pranay Sethi ruling to add 40% for future income prospects. The interest rate was raised to 9% p.a., with the widow receiving her share via a bank fixed deposit.

What did the court decide?

Compensation enhanced to Rs. 7,35,000; interest rate increased to 9% p.a.; enhanced amount to be deposited by insurer.

Baljinder Kaur & Ors. Vs Bajaj Allianz General Insurance Co. Ltd… — Insurance | Delhi HC (2017)

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$~R-641 & 642

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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Decided on: 05^th December, 2017

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MAC APPEAL 1147/2012 and CM 18535/2012 BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. ..... Appellant Through: Ms. Suman Bagga and Ms. Anjali Chawla, Advocates versus BALJINDER KAUR @ BALJIT KAUR & ORS. ..... Respondents Through: None

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- MAC APPEAL 197/2016

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BALJINDER KAUR @ BALJIT KAUR & ORS. ..... Appellants Through: None Versus

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. & ORS. ..... Respondents Through: Ms. Suman Bagga and Ms. Anjali Chawla, Advocates for R-1

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CORAM: HON'BLE MR. JUSTICE R.K.GAUBA

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JUDGMENT (ORAL)

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Surjit Singh was travelling in a Maruti Van bearing registration no.DL-3CZ-1437 (van), driven by Sumit Kumar (driver), a respondent

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MAC Appeal No.1147/2012 & 197/2016

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Page 1 of 5

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in these appeals on 08.07.2003, the van carrying several other persons. It came to be involved in a collision at about 02.00 hours with a truck bearing registration no.UP-30A-0768 (truck). As a result, Surjit Singh suffered injuries which proved fatal. The accident claim case (MACT suit no. 251/04) was instituted on 20.08.2004 by his wife and three other members of the family (collectively, the claimants) dependent on him.

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The case was put to inquiry and decided by judgment dated 27.07.2012 whereby the said driver was held responsible for the collision. The van was admittedly insured against third party risk for the period in question with Bajaj Allianz General Insurance Company Ltd. (insurer).

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The Motor Accident Claims Tribunal (Tribunal) awarded compensation in the total sum of Rs.5,27,000/- and directed the insurer to pay with interest at the rate of 7.5% p.a. The said amount included Rs.4,74,912/- as loss of dependency besides Rs.25,000/- for loss of love and affection, Rs.10,000/- for loss of consortium, Rs.10,000/- for loss to estate and Rs.7,000/- for funeral expenses.

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The insurer, by its appeal (MACA 1147/2012), questions the said award on the ground that the evidence of Chattar Pal (PW-3), presented as an eye witness, has been wrongly believed and that there was no proof of negligence on the part of the van driver, the responsibility being of the truck driver who had suddenly stopped the vehicle coming in the path of the van. The insurer also questions the calculation of loss of dependency submitting that, in her evidence, the

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MAC Appeal No.1147/2012 & 197/2016

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Page 2 of 5

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widow (PW-1) had described the deceased to be aged 37 years old and therefore, the choice of multiplier is inappropriate.

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The claimants had come with cross-objections (CM 13589/2015) which were directed to be registered as an independent appeal by order dated 09.02.2016. The cross-appeal (MACA 197/2016) sought enhanced compensation. Both the appeals were put in the list of ‘Regulars’ as per order dated 09.022016. When they are called out for hearing, there is no appearance on behalf of the claimants. The learned counsel for the insurer has been heard and with her assistance the record perused.

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The plea on the issue of negligence must be rejected. There is no reason why the evidence of PW-3 should be disbelieved. He was a passenger in the van at the time of the accident. He has explained the sequence of events leading to the collision. Even if it were to be assumed that the truck driver was also responsible to an extent he having suddenly brought his vehicle to a halt, it would at the most a case of composite negligence. The choice of the claimants to initiate action against either of the vehicles cannot be defeated, there being no effort made during the course of inquiry by the insurer of the van to have the driver, owner or insurer of the truck also joined as party respondents.

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The plea about the age of the deceased also must be rejected. The tribunal has noted that the Voter I card of the deceased (Ex. PW1/4) would reveal the age of the deceased as on 01.01.2002 to be 27 years. In these circumstances, there is no case made out for any interference with the choice of multiplier.

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MAC Appeal No.1147/2012 & 197/2016

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Page 3 of 5

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It is noted that the claimants had not proved by any clear evidence the actual earnings of the deceased. The vague plea in their appeal that he was earning more than Rs.9,000/- p.m. is not supported by any evidence. In these circumstances, the reliance on the minimum wages of skilled worker (Rs.3,104/-) as taken into account by the tribunal is correct. However, following the ruling of a Constitution Bench of the Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi and Ors. , the element of future prospects of increase in income to the extent of 40% would deserve to be added. Thus, the loss of dependency is re-computed as [Rs.3,104/- x 140/100 x 3/4 x 12 x 17] Rs.6,64,876.80, rounded off to Rs.6,65,000/-.

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Following the dispensation in Pranay Sethi (supra), in lieu of the non-pecuniary damages awarded by the tribunal, Rs.40,000/towards loss of consortium and Rs.15,000/- each for loss to estate and funeral expenses are added. Thus, the total compensation is computed as [Rs.6,65,000/- + Rs.40,000/- + Rs.15,000/- + Rs.15,000/-] Rs.7,35,000/- (Rupees Seven lakh and thirty five thousand only).

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The award is modified accordingly.

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Following the consistent view taken by this court, the rate of interest is increased to 9% per annum from the date of filing of the petition till realization. [see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors .]

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It is directed that the entire enhanced portion of the award will fall to the share of Baljinder Kaur @ Baljit Kaur (widow) only, it to be released to her in the form of an interest bearing fixed deposit receipt

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MAC Appeal No.1147/2012 & 197/2016

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Page 4 of 5

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taken out from a nationalized bank for a period of ten years with right to draw periodic interest.

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By order dated 02.11.2012 on MACA 1147/2012, it was informed that the entire awarded amount was deposited with the tribunal. In this view, execution of the award was stayed. The amount thus deposited will now be released to the claimants in terms of the judgment of the tribunal. The enhanced portion of the award with corresponding interest will be deposited by the insurer with the tribunal within 30 days making it available to be released to the claimant.

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The statutory amount shall be refunded after proof of award having been satisfied is shown.

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Both appeals and the pending application are disposed of in above terms.

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R.K.GAUBA, J.

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DECEMBER 05, 2017 yg

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MAC Appeal No.1147/2012 & 197/2016

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Page 5 of 5

Baljinder Kaur & Ors. v. Bajaj Allianz General Insurance Co. Ltd. & Ors.

Case brief

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Baljinder Kaur & Ors. v. Bajaj Allianz General Insurance Co. Ltd. & Ors.

Case brief

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