Hdfc Ergo General Insurance Company Ltd v. Parkash & Ors

SURESH KAIT, J. (Oral)

MAC.APP. 1185/2012

¶1Vide the present appeal, the appellant/Insurance Company is assailing the impugned award dated 03.07.2012, whereby the learned Tribunal has granted compensation for a sum of Rs.20,62,000/- with interest at the rate of 12% per annum from the date of filing the claim petition, i.e., 12.07.2011 till realization of the amount.

¶2Learned counsel appearing on behalf of the appellant/Insurance Company has argued that the respondents/claimants have failed to prove that the deceased was in a permanent employment and that he was working with M/S Garg Paper Converters and was drawing salary of Rs.16,000/- per month. Therefore, in the absence thereof, while calculating the compensation, the learned Tribunal should not have added 50% of the actual income of the deceased towards future prospects.

¶3To strengthen her arguments on this issue, learned counsel has relied upon a case of Sarla Verma & Ors. Vs. DTC & Anr., (2009) 6 SCC121, which has been confirmed by the Full Bench of the Apex Court in the case bearing Civil Appeal No. 4646 of 2009 titled as 'Reshma Kumari & Ors. Vs. Madan Mohan & Anr.' delivered on 02.04.2013.

¶4Learned counsel also relied upon the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta & Ors. AIR 2006 SC 1255 and submitted that the claimants neither produced any material nor examined any witness to prove that there were chances of increase in the salary of the deceased and had he been alive, he would have earned more. Therefore, in the absence of the same, the learned Tribunal has wrongly added 50% of the actual income of the deceased towards future prospects.

¶5Learned counsel further argued that the compensation granted by the learned Tribunal towards non-pecuniary benefits such as Rs.1,50,000/- for loss of love and affection and Rs.30,000/- for loss of estate is on higher side.

¶6Learned counsel further argued that while awarding the compensation the learned Tribunal has awarded an exorbitant rate of interest as 12% per annum on the awarded amount from the date of filing the claim petition till realization of the amount. She submitted that normally the rate of interest awarded on the compensation amount varies from 7.5% to 9% and interest at the rate of 12%, as awarded by the learned Tribunal, is being awarded only in case of default of payment. However, there is no such default on the part of the appellant/Insurance Company, therefore, the rate of interest may be reduced.

¶7Though there is no straight jacket formula to allow the compensation towards non-pecuniary benefits as it differs in each case depending upon the facts and circumstances of the case.

¶8In the present case, the deceased had died at the young age of 22 years. He left behind his parents. He was a bachelor. Recently, in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, the Full Bench of the Apex Court has granted Rs.1,00,000/- for loss of love and affection.

¶9This Court has also followed the aforenoted dictum in the case bearing MACA No.846/2011 titled as 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors.', decided on 30.09.2013.

¶10Therefore, keeping in view the settled position of law and that the deceased was aged 22 years at the time of the accident, I do not find any discrepancy in the order of the learned Tribunal in adding 50% of the actual income of the deceased towards future prospects. However, keeping in mind the facts and circumstances of the case, I reduce the

compensation for loss of love and affection etc.from Rs.1,50,000/- to Rs.1,00,000/- and for loss of estate from Rs.30,000/- to Rs.10,000/-.

¶11I note, in the present case, there is no such order of any default on the part of the appellant/Insurance Company, therefore, I am of the considered opinion that the rate of interest, i.e., 12% per annum awarded by the learned Tribunal is on higher side. Hence, the same is reduced to 9% per annum.

¶12Learned counsel for the appellant/Insurance Company has also raised the issue of lawyer's fee and out of pocket expenses, i.e., Rs.50,000/- + Rs.7,000/- respectively awarded by the learned Tribunal while granting compensation.

¶13On the issue of lawyer's fee and out of pocket expenses, this Court has already given its opinion in the case of ICICI Lombard General Insurance Co. Ltd. Vs. Kanti Devi & Ors., MAC.A. 645/2012 decided on 30.07.2012, whereby it is held that the Tribunal has no power to grant lawyer's fee and out of pocket expenses.

¶14Accordingly, impugned order dated 03.07.2012 passed by the learned Tribunal is hereby set aside qua the interest @ 12% per annum and lawyer's fee and out of pocket expenses.

¶15I note, the learned Tribunal has granted only Rs.10,000/- for funeral charges. Whereas in the case of Rajesh & Ors., (supra), the Apex Court has granted Rs.25,000/- for funeral expenses.

¶16Therefore, while reducing the compensation towards loss of love and affection etc. and loss of estate, being on higher side, with a view to

make the award just, fair and reasonable, I enhance the compensation from Rs.10,000/- to Rs.25,000/- for funeral charges.

¶17Consequently, the compensation amount comes as under:- Sr. No. Heads of compensation Compensation granted by the ld. Tribunal Compensation granted by this Court.

¶1Funeral charges Rs. 10,000/-Rs. 25,000/-

¶2Loss of dependency Rs.18,72,000/-Rs.18,72,000/-

¶3Loss of love and affection Rs.1,50,000/-Rs.1,00,000/-

¶4Loss of estate Rs. 30,000/-Rs. 10,000/-

Total Rs.20,62,000/- Rs.20,07,000/- Resultantly, this Court reduces the compensation amount to Rs.55,000/- (Rs.20,62,000 - Rs.20,07,000).

¶18Vide order dated 16.11.2012, while granting stay on the execution of the impugned award dated 03.07.2012, this Court directed the appellant/Insurance to deposit 50% of the awarded amount along with upto date interest with the learned Tribunal. Accordingly, the appellant deposited the 50% of the award with interest @ 12% per annum.

¶19In view of the above, I direct the appellant/Insurance Company to deposit the balance compensation amount with upto date interest at the rate of 9% per annum after adjusting the sum of Rs.55,000/-, being reduced by this order, and the excess interest amount deposited by the appellant/Insurance Company in pursuance of the aforesaid order dated

16.11.2012 as the rate of interest is reduced from 12% per annum to 9% per annum.

¶20On deposit, the Registry of this Court is directed to release the statutory amount in favour of the appellant/Insurance Company.

¶21The appeal is partially allowed accordingly. CM No.19180/2012 (for stay) With the disposal of the appeal itself, this application has become infructious. The same is accordingly dismissed.

SURESH KAIT, J.

FEBRUARY 11, 2014 Sb/jg

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 11th February 2014 + MAC.APP. 1185/2012 HDFC ERGO GENERAL INSURANCE COMPANY LTD.... Appellant Represented by: Ms. Neeraja Sachdeva, Advocate. Versus PARKASH & ORS. ..... Respondents Represented by: Ms.Rupika Singh for Mr.Navneet Goyal, Advocate for Respondent Nos. 1 and 2. CORAM: HON'BLE MR. JUSTICE SURESH KAIT