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Ashu & Ors. v. New India Assurance Co. Ltd.

Delhi High Court

Oct 14, 2014

Judgment

Subsequent
References

CaseIQ

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Summary of Opinion by JAYANT NATH, J. (ORAL)

Factual and Procedural Background

The opinion concerns five appeals arising from four motor-accident claim petitions filed after a collision on 13.11.2011. The deceased and injured were travelling in a three-wheeler (TSR) which, at Shanti Van, was hit by a truck alleged to have been driven rashly and negligently. Three occupants (Rama Shankar Mishra, Laxman Prasad and Atul Prasanna) died; a fourth occupant, Shibeet Prasanna, was injured. The appeals are identified as MAC. APP.737/2013, MAC. APP.743/2013, MAC. APP.744/2013, MAC. APP.747/2012 (impugning an award for the injured Shibeet Prasanna) and MAC. APP.372/2014 (relating to the death of Laxman Prasad). Several appeals were filed by the insurance company and some by the claimants to challenge the awards of the Tribunal.

Legal Issues Presented

Whether there was contributory negligence on the part of the TSR driver (or shared negligence) such that compensation should be apportioned between the owners of the truck and the TSR.
Whether "future prospects" (addition to income for computing loss of dependency) were correctly awarded by the Tribunal, and if so, at what percentage (specifically whether 30% or 50% should be applied in given cases).
Whether certain heads of non-pecuniary damages (loss of consortium, loss of love and affection, funeral expenses, loss of estate) were correctly quantified by the Tribunal and require enhancement.
Procedural: Directions regarding deposit/refund of any statutory amounts deposited by the appellant at the time of filing appeals, and deposit of additional compensation by the respondent/insurance company with interest.

Arguments of the Parties

Appellant / Insurance Company's Arguments

The collision was a head-on collision and there was contributory negligence by the driver of the truck and the driver of the TSR; hence compensation should be shared between the owners of both vehicles.
The Tribunal erred in granting "future prospects" in computing loss of dependency; relying on Smt. Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, the insurance company contended that future prospects are not payable and thus the Tribunal wrongly computed loss of dependency.
The insurance company also relied on observations in the mechanical inspection report noting that both the offending vehicle and the TSR were damaged on their front sides, to support its contention of head-on collision or shared liability.

Claimants' Arguments

Relying on Rajesh v. Rajbir Singh, (2013) 9 SCC 54, the claimants argued that for victims below 40 years (and those self-employed or on fixed wages) a 50% addition should be made for future prospects; the Tribunal's application of 30% was incorrect and should be 50%.
For MAC. APP.372/2014 (deceased Laxman Prasad), claimants argued that amounts awarded for loss of consortium and loss of estate were inadequate.
Relying on Kalpanaraj v. Tamil Nadu State Transport Corpn, 2014 ACJ 1388 (SC), claimants sought additional heads such as Rs. 1 lakh for loss of expectation of life (in addition to loss of consortium, loss of estate, loss of love and affection).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smt. Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121	Relied upon by appellant to contend that future prospects are not payable (i.e., challenging the Tribunal's grant of future prospects).	The court considered the appellant's reliance but did not accept it in the facts of these matters; it proceeded to uphold the grant of future prospects where supported by evidence and applicable precedent.
Rajesh v. Rajbir Singh, (2013) 9 SCC 54	Held that in the case of self-employed or those on fixed wages, when the victim is below 40 years, an addition of 50% should be made in the wages for computing loss of future earnings.	The court applied Rajesh to cases where the deceased was below 40 and self-employed/fixed wage (specifically held that future prospects should be 50% instead of 30% in MAC. APP.372/2014 and adjusted awards accordingly).
Smt. Savita v. Bindar Singh, (2014) 4 SCC 505	Stated that for self-employed or those on fixed wages, a 30% increase in income over a period of time may be appropriate.	The court cited this decision as part of the jurisprudential background on appropriate percentages for future prospects, but where Rajesh mandated 50% (victim below 40), the court applied Rajesh.
V. Mekala v. M. Malathi, 2014 ACJ 1441	Illustrative application: in the case of a 16-year-old student, the Supreme Court awarded a 50% increase for future prospects.	Used as precedent supporting the award of a 50% increase for future prospects in age-appropriate cases; cited to show consistency in awarding higher percentages for younger victims.
Kalpanaraj v. Tamil Nadu State Transport Corpn, 2014 ACJ 1388 (SC)	Referred to by claimants for the proposition that, in addition to conventional heads, the Supreme Court awarded Rs. 1 lakh for loss of expectation of life in that case.	The claimant relied on this decision to seek similar relief; the court considered the submission but granted other enhancements (e.g., increased consortium/love and affection) rather than specifically awarding Rs. 1 lakh as "loss of expectation of life" in the reported orders reproduced in the opinion.

Court's Reasoning and Analysis

The court proceeded through a stepwise analysis addressing (a) contributory negligence, (b) the propriety and quantum of future prospects, and (c) quantification of non-pecuniary heads of damage in the respective appeals.

Contributory negligence / causation: The Tribunal had recorded that the accident occurred due to rash and negligent driving of the truck driver and relied on the mechanical inspection report, photographs, the FIR and evidence of PW-2 (an eyewitness and co-occupant). PW-2's affidavit stated that the truck came from the opposite side, abruptly turned towards the TSR and hit it with great impact; this statement was unrebutted as there was no cross-examination on that point. Given the unrebutted eyewitness testimony and the Tribunal's reliance on documentary and inspection evidence, the court found no infirmity in the Tribunal's conclusion that the truck driver was responsible. The court therefore rejected the appellant's contention of contributory negligence and held that the insurance company's reliance on certain mechanical-inspection observations (damage on front sides of both vehicles) was misplaced.

Future prospects: The court noted, by judicial notice, the increase in prescribed minimum wages from 2002 to 2012 (minimum wages for a skilled worker increasing from Rs. 3,103.7 per month in 2002 to Rs. 8,528 per month in 2012) to emphasize that wages rise over time. The court then examined applicable Supreme Court precedents:

Rajesh v. Rajbir Singh (2013) — directs 50% addition for future prospects where the deceased is below 40 years and is self-employed or on fixed wages.
Smt. Savita v. Bindar Singh (2014) — supports a 30% increase as appropriate in some cases for self-employed/fixed wage victims.
V. Mekala v. M. Malathi — example where 50% was awarded (student aged 16).

The court concluded that the Tribunal was right generally to grant future prospects. However, where the Tribunal used 30% despite the deceased being below 40 and the circumstances falling within Rajesh, the court corrected the percentage to 50% (specifically in MAC. APP.372/2014 relating to Laxman Prasad).

Quantification of non-pecuniary damages and specific adjustments:

MAC. APP.737/2013, MAC. APP.744/2013, MAC. APP.743/2013 and MAC. APP.747/2013: The court found no merit in the insurance company's appeals and dismissed these appeals (paras 11–16).
MAC. APP.372/2014 (deceased Laxman Prasad, aged 33, mason): The Tribunal had used minimum wages of Rs. 8,112 per month and awarded total compensation of Rs. 15,73,566 (breakdown provided in the award). The claimants argued for 50% prospects under Rajesh; the court agreed that the Tribunal's use of 30% was contrary to Rajesh and adjusted future prospects to 50%. The court also increased loss of consortium from Rs. 10,000 to Rs. 1,00,000 and loss of love and affection from Rs. 25,000 to Rs. 1,00,000. After adjustments the court fixed the award components and recomputed the total to Rs. 21,18,208 (with breakdown stated in the order).
Cross Appeal (Atul Prasanna, deceased aged 22, musician): The Tribunal had assessed income at Rs. 15,000 per month, deducted 50% for personal expenses, took multiplier 18 and awarded total Rs. 21,61,000. The court found it inappropriate to award loss of consortium for an unmarried deceased and removed the Rs. 10,000 for loss of consortium. The court enhanced loss of love and affection from Rs. 25,000 to Rs. 1,00,000 and funeral expenses from Rs. 10,000 to Rs. 25,000. Loss of dependency and loss of estate remained or were stated as adjusted; the court recomputed the total as Rs. 22,41,000 and held it to be just, fair and reasonable.

Procedural and remedial directions: The court directed that if any statutory amount was deposited by the appellant at the time of filing the appeal, the same may be refunded. For enhancements ordered, the respondent/insurance company was directed to deposit the additional compensation with pendent lite interest at 9% per annum from the date of filing of the petition until deposit in court, and the same be released to the appellants as directed by the Tribunal.

Holding and Implications

Core Rulings:

MAC. APP.737/2013, MAC. APP.744/2013, MAC. APP.743/2013 and MAC. APP.747/2013 — DISMISSED. The court upheld the Tribunal's finding that the truck driver's rash and negligent driving caused the accident and rejected the contention of contributory negligence.
MAC. APP.372/2014 (Laxman Prasad) — Allowed in part: The court corrected the Tribunal's computation of future prospects from 30% to 50% (applying Rajesh v. Rajbir Singh), enhanced non-pecuniary heads (loss of consortium and loss of love and affection to Rs. 1,00,000 each), and recomputed total compensation to Rs. 21,18,208.
Cross Appeal (Atul Prasanna) — Allowed in part / modified: The court removed the award of loss of consortium (deceased was unmarried), enhanced loss of love and affection to Rs. 1,00,000 and funeral expenses to Rs. 25,000, and recomputed the total compensation to Rs. 22,41,000.

Implications for the Parties:

Insurance company appeals challenging liability were rejected in the four appeals noted above; the Tribunal's finding of liability against the truck driver was sustained.
For the claimants in MAC. APP.372/2014 and the Atul Prasanna matter, the court increased compensation amounts as specified; the insurance company is directed to deposit additional compensation with pendent lite interest at 9% per annum from the date of filing until deposit in Court.
If the appellant had deposited any statutory amount on filing the appeal, the court directed the refund of such deposits to the appellant.
The court's adjustments applied existing Supreme Court precedents (primarily Rajesh v. Rajbir Singh) to correct the percentage for future prospects where the deceased was below 40 and otherwise in the category addressed by that precedent. The opinion does not purport to lay down a new precedent; it applies extant Supreme Court decisions to the facts before it.

This summary is prepared exclusively from the contents of the provided opinion and does not add or infer facts beyond the text of the opinion.

Show all summary ...

JAYANT NATH, J. (ORAL)

1. There are five appeals. MAC. APP.737/2013 filed by Insurance company and 372/2014 filed by the claimants relate to the death of deceased Sh. Laxman Prasad. MAC. APP.743/2013 is filed by the Insurance company concerning the death of Sh. Atul Prasanna, MAC. APP.744/2013 is filed on account of death of Sh. Rama Shankar Mishra and MAC. APP.747/2012 is filed to impugn the award on account of the injured Sh. Shibeet Prasanna.

2. The brief facts leading to filing of these claim petitions is that the deceased and the injured were travelling in a TSR on 13.11.2011 When the TSR reached Shanti Van it was hit by a truck said to be driven by the driver of the offending vehicle in a rash and negligent manner. Three of the occupants, namely, Rama Shankar Mishra, Laxman Prasad and Atul Prasanna suffered injuries and died. Fourth occupant Shibeet Prasanna was injured in the accident. Hence, the four claim petitions were filed.

MAC. APP. No. 737/2013

MAC. APP. No. 744/2013

MAC. APP. No. 743/2013

MAC.AP No. 747/2013

3. Learned counsel appearing for the appellant has made two submissions. He firstly submits that this was a case of a head on collision and hence there was contributory negligence of the driver of the truck and the driver of the TSR. On this basis he submits that compensation awarded should be shared between the owners of the said two vehicles. He secondly submits that while calculating loss of dependency the Tribunal in all the matters relating to death, has granted future prospects. He submits that relying upon the judgment of the Supreme Court in the case of Smt. Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 that future prospects are not payable and hence the Tribunal has erroneously computed loss of dependency.

4. Coming to the issue of contributory negligence, it may be noted that the Tribunal recorded that the accident took place due to the rash and negligent driving of the driver of the offending vehicle, namely, the truck. The Tribunal relied upon the mechanical inspection report, photographs of the offending vehicle and TSR, the FIR and the evidence of PW-2 who was an eye witness.

5. Learned counsel appearing for the insurance company has relied upon observations of the Tribunal which notes that as per mechanical inspection report the offending vehicle and the TSR were damaged from the front side.

6. I may first look at the evidence of PW-2 Shibeet Prasanna the eye witness and also a co-occupant of the TSR. The said PW-2 in his evidence by way of affidavit has pointed out that three of them were coming back in a three wheeler scooter with their musical instruments after having concluded the rehearsal for the Trade fair. He has further averred that the Truck came from the opposite side and abruptly took turn towards the side of the TSR and hit the TSR with great impact. There is no cross-examination of the said witness on the said statement made.

7. In view of the unrebutted testimony of PW-2, the eye witness, I do not see any infirmity in the conclusions drawn by the Tribunal. The reliance of learned counsel for the insurance company on the certain observations in the Award pertaining to the mechanical inspection report are misplaced. There is no merit in the said contention.

8. Coming to the issue of future prospects, I can take judicial note of the fact that minimum wages for a skilled worker in 2002 were Rs. 3,103.7 P.M and in 2012 were Rs. 8,528/- P.M It is obvious that the prescribed minimum wages have more than doubled in ten years.

9. In the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54 the Supreme Court held that in the case of self employed or those on fixed wages, when the victim is below 40 years an addition of 50% should be made in the wages for the purpose of computing loss of future earnings for the compensation to be just and equitable.

10. In the case of Smt. Savita v. Bindar Singh, (2014) 4 SCC 505, the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of V. Mekala v. M. Malathi, 2014 ACJ 1441, the Supreme Court in the case of a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

11. Hence, the Tribunal rightly granted future prospects.

12. There is no merit in the appeals of the appellant. MAC. App. 737/2013, MAC. App. 744/2013, MAC. App. 743/2013 and MAC. App. 747/2013 are dismissed.

13. In case any statutory amount was deposited by the appellant at the time of filing of the appeal, the same may be refunded to the appellant.

MAC. APP.372/2014

14. MAC. APP.372/2014 pertain to the deceased Laxman Prasad. The deceased was 33 years of age and was working as a Mason. He had three minor children a widow and a father. The Tribunal took the minimum wages of Rs. 8,112/- applicable for a skilled worker for the purpose of computing loss of dependency. Total compensation of Rs. 15,73,566/- was awarded i.e Rs. 15,18,566/- for loss of dependency, Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate, Rs. 10,000/- for funeral expenses and Rs. 25,000/- for loss of love and affection.

15. Learned counsel appearing for the claimants has made three submissions. He firstly submits that relying on the judgment of the Supreme Court in the case of Rajesh v. Rajbir Singh, (supra), the Tribunal has wrongly added future prospects @30% whereas the Tribunal should have taken 50% as future prospects. She also submits that for loss of consortium and loss of estate inadequate compensation has been awarded. She lastly submits that relying upon the judgment of the Supreme Court in the case of Kalpanaraj v. Tamil Nadu State Transport Corpn. 2014 ACJ 1388 (SC) that apart from loss of consortium, loss of estate and loss of love and affection the Supreme Court in the said judgment also awarded Rs. 1 lac for loss of expectation of life.

16. Coming to the first submission of learned counsel for the claimant a perusal of the award shows that the Tribunal has added 30% on account of future prospects and also noted that the age of the deceased was 32 years. This is contrary to the judgment of the Supreme Court in the case of Rajesh v. Rajbir Singh, (supra). Accordingly, future prospects would be 50%.

17. On loss of consortium the Tribunal has awarded Rs. 10,000/-. I increase this amount to Rs. 1 lac. Towards love and affection the Tribunal has awarded Rs. 25,000/-. I increase this amount to Rs. 1 lac.

18. Keeping in view the above increase in my opinion the compensation would be just, fair and reasonable.

19. Further enhancement would not be appropriate in the facts and circumstances of this case. Accordingly, the claimant in this case would be entitled to following compensation:-

“For loss of dependencyRs. 18,98,208/-For loss of consortiumRs. 1,00,000/-For loss of estateRs. 10,000/-Funeral expensesRs. 10,000/-Loss of love and affectionRs. 1,00,000/-TotalRs. 21,18,208/-”

Cross Appeal No. …… (to be numbered)/2014

20. This is a cross appeal which has not been numbered separately. Registry may give a separate number.

21. This appeal pertains to the deceased Atul Prasanna. The deceased was 22 years of age and a graduate in musical instrument, working as a musician. The tribunal keeping into account the evidence placed on record by the claimant, assessed the income at Rs. 15,000/- per month. The deceased was a bachelor and was survived by his parents and sisters. 50% was deducted on account of personal expenses of the deceased. The deceased was said to be 22 years of age. Multiplier of 18 was taken. Hence a total compensation of Rs. 21,61,000/- was awarded. Loss of dependency was taken at Rs. 21,06,000/-. Rs. 10,000/- was towards loss of consortium; Rs. 10,000/- was towards loss of estate; Rs. 10,000/- was as funeral expenses; Rs. 25,000/- towards love and affection.

22. It is not understood as to why the tribunal has awarded loss of consortium inasmuch as the deceased was unmarried. The Supreme Court in the case of Rajesh v. Rajbir Singh, (supra). on loss of consortium has said as follows:

“20. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.”

23. Accordingly, I remove the said amount of Rs. 10,000/- from the Award.

24. On the issue of loss of love and affection, the tribunal has awarded Rs. 25,000/-. The said amount is enhanced to Rs. 1 lakh keeping in view the judgment of the Supreme Court in the case of Rajesh v. Rajbir Singh, (supra). In addition, I also enhance the amount of Rs. 10,000/- given as funeral expenses to Rs. 25,000/-.

For loss of dependencyRs. 21,06,000/-For loss of estateRs. 10,000/-Funeral expensesRs. 25,000/-Loss of love and affectionRs. 1,00,000/-TotalRs. 22,41,000/-”

25. Accordingly, the compensation would now come to Rs. 22,41,000/-. In my opinion, the said compensation is just, fair and reasonable.

26. The respondent/insurance company will deposit the additional compensation as directed by this Court with pendent lite interest @9% per annum from the date of filing of the petition till deposit in Court. The same be released to the appellant as directed by the Tribunal.

27. Appeal stands disposed of.