$~19 & 20

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 30^th March, 2016

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MAC.APP. 666/2014 & CM Nos. 11942-43/2014

ORIENTAL INSURANCE CO. LTD.

..... Appellant

Through:

Mr. Manoj Bhandari, Adv.

Versus

PADAM SINGH (NOW DECEASED )& ORS

..... Respondents

Through:

Mr. Rajeev Kumar & Mr. Saurabh

Kumar, Advs.

AND

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MAC.APP. 674/2014

SHASHI & ORS.

..... Appellant

Through:

Mr. Rajeev Kumar & Mr. Saurabh

Kumar, Advs.

Versus

RAJ KUMAR& ORS

.... Respondents

Through:

Mr. Manoj Bhandari, Adv. for R-3.

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

R.K.GAUBA, J (ORAL):

1.

Padam Singh, aged 36 years, a self-employed person, died as a result

of injuries suffered in a motor vehicular accident that occurred at about

11.30 a.m. on 02.03.2009 involving truck bearing No. HR 38 J 3572 (the

offending vehicle) which was admittedly insured against third party risk

with the appellant insurance company (insurer) for the period in question.

His dependant family members (first to sixth respondents in MAC Appeal

No. 666/2014 and appellants in MAC Appeal No. 674/2014) took over the

claim petition which was originally filed by Padam Singh himself for

compensation under Sections 166 and 140 of Motor Vehicles, 1988 (MV

Act) since he died during its pendency on account of injuries. In the said

claim petition, the driver and owner of the offending vehicle were impleaded

as respondents, in addition to the insurer.

2.

The tribunal held inquiry and, by judgment dated 20.01.2014,

awarded compensation in the sum of ` 9,40,160/- with interest @ 7.5 % per

annum from the date of filing of the petition (15.7.2009), directing the

insurance company to pay.The award has been calculated thus:-

` 8,30,160/-

` 40,000/-

` 25,000/-

` 10,000/-

` 25,000/-

` 10,000/-

` 9,40,160/-

` 50,000/-

` 8,90,160/-

3.

The insurance company by its appeal questions the calculation of loss

of dependency on the ground that minimum wages of semi-skilled worker (`

4,100/-) was wrongly adopted in absence of proof of the deceased being

specially skilled in any manner. It is the contention of the insurer that

minimum wages of unskilled worker at ` 3,934/- should instead have been

adopted as the benchmark in absence of any formal proof income. This plea

must be accepted.

4.

The insurance company further submits that addition of future

prospects of 50% of increase was unfounded and improper.

5.

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 SCC166.

6.

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.

7.

In above facts and circumstances, the loss of dependency must be

calculated on the notional income of ` 3,934/- per month without addition of

future prospe