Bajaj Allianz General Insurance Co. Ltd vs Mohd Ekraam & Ors

R.K.Gauba, J

Maksood @ Massod, described in the claim case no.1037/08 as the victim died due to injuries suffered in motor vehicular accident that occurred on

08.11.2007 due to negligent driving of motor vehicle TATA Tempo bearing no. DL1LC9149 which was admittedly insured against third party risk with

the appellant (insurer). The claim for compensation was instituted on 05.05.2008 by his parents and wife, they being first to third respondents (colly.).

The tribunal held inquiry and, by judgment dated 19.01.2012, upheld the said claim case and awarded Rs.8,99,456/- as compensation with interest in

favour of the claimants, fastening the liability to pay on the insurer. The insurer had taken the defence that the vehicle was not covered by a valid

fitness certificate. This plea was rejected by the tribunal with reference mainly to the decision of the Supreme Court in National Insurance Company

Limited vs. Swaran Singh & Ors (2004) ACJ 1 .

The appeal was filed questioning the calculation of compensation on the assumption that the deceased was an earning hand, reference being made

to some material on record of the tribunal indicating he being only 16 years old at the relevant point of time. Exception is also taken to the addition of

future prospects of increase in the income to the extent of 50%. The insurance company also submits that it should have been exonerated in view of

the defence raised.

The appeal was admitted and put in the list of regulars as per order dated 11.02.2016. When the matter is taken up for hearing on its own turn,

there is no appearance on behalf of the appellant.

The record has been perused. It does appear that in the post mortem examination report, the age of the deceased was not indicated and further that

copy of the ration card (Ex.PW1/1) would show his age to be 16 years in 2007. The contention of the insurer on this basis was however rejected. This

Court agrees with the view taken by the Tribunal. The mention of the age in the ration card is based on mere declaration. It cannot be taken as the

irrefutable proof. It cannot be ignored that the deceased was a married person, third respondent being his wife. In these circumstances, there is no

error committed by the tribunal on the question of age or of the deceased being an earning hand of the family.

However, in view of the decision of the 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 has to be restricted to 40% and the loss of dependency has to be

re-computed as (3516 x 140 / 100 x 2 / 3 x 12 x 18) Rs.7,08,825.60, rounded off to Rs.7,09,000/- (Rupees Seven Lakhs and Nine Thousand Only).

It is noted that the tribunal had added Rs.25,000/- towards funeral charges, Rs.1,00,000/- towards loss of love and affection, Rs.10,000/- for loss of

consortium and Rs.5,000/- towards loss of estate. These awards also require modification in view of the ruling in Pranay Sethi (supra). Thus, instead

of the above, Rs.40,000/- is added towards loss of consortium besides Rs.15,000/- each on account of loss to estate and funeral expenses.

Therefore, the total compensation in the case is computed as (7,09,000 + 40,000 + 15,000 + 15,000) Rs.7,79,000/- (Rupees Seven Lakhs and

Seventy Nine Thousand only). The award is modified accordingly.

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.]

The defence taken by the insurer of breach of terms and conditions of the insurance policy has been rejected by the tribunal for correct reasons

and, therefore, does not call for any interference.

By order dated 23.04.2012, the insurance company had been directed to deposit the entire awarded amount with the Registrar General. Out of

such deposit, 70% was directed to be released to the claimants. The said order was partially modified by the subsequent order dated 02.04.2013. The

registry shall now calculate the amount payable to the claimants under the modified award and release the balance to them accordingly, refunding the

excess in deposit to the insurance company.

The insurance company did not appear to assist at the time of adjudication. Therefore, the statutory deposit is forfeited as costs to be made over to

Delhi High Court Legal Services Committee.

The appeal is thus disposed of in above terms.