Jai Chand Sharma & Anr. vs Icici Lombard Insurance Co.Ltd. & ...
2011 Latest Caselaw 701 Del

                                  UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAC.APP. NO.360/2009 and CM NO. 10356/2009

ICICI LOMBARD INSURANCE CO. LTD.                   ..... Appellant
                      Through: Ms. Suman Bagga, Advocate.
               versus
JAI CHAND SHARMA & ORS.                        ..... Respondents
                      Through: Mr.Uday Bhan Singh,
                               Mr. Mukesh Chauhan and
                               Mr. G.S. Chaturvedi, Advocates.

                          AND

+     MAC.APP. NO.446/2009 and CM NO. 13150/2009

JAI CHAND SHARMA & ANR                               ..... Appellants
                   Through:          Mr.Uday Bhan Singh,
                                     Mr. Mukesh Chauhan and
                                     Mr. G.S. Chaturvedi, Advocates.
               versus
ICICI LOMBARD INSURANCE CO. LTD. & ANR.           ..... Appellants
                      Through: Ms. Suman Bagga, Advocate, for
                               the respondent no.1.

%                         Date of Decision : February 7, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                          JUDGMENT

: REVA KHETRAPAL, J.

By way of this order it is proposed to decide two appeals, one

filed by the appellant-the ICICI Lombard General Insurance

Company Ltd., being MAC App. No. 360/2009 for scaling down the

compensation awarded to the respondents No.1 and 2 herein by its

award dated 29th May, 2009 and the other filed by Jai Chand Sharma

being MAC App. No. 446/2009 for enhancement of the compensation

awarded by the Motor Accident Claims Tribunal by its aforesaid

Award.

2. Briefly delineated the facts are that on 28th November, 2005,

one Surya Kant Sharma, son of the respondents No.1 and 2, who was

aged 22 years and 10 months, while driving his scooter was hit by a

Santro car driven by the respondent no.3, Hari Krishen Pandita.

Allegedly, the car was being driven at a shooting speed and first hit

from the side a scooter driven by Mr. Durgesh Saini (PW2) and

thereafter hit the back side of the scooter of Surya Kant Sharma, who

succumbed to his injuries on the same day. Surya Kant Sharma

(hereinafter referred to as „the deceased‟), being the only son of the

appellants, the appellants filed a petition under Section 166 of the

Motor Vehicles Act, 1988 for the grant of compensation for his

untimely demise.

3. The learned Motor Accident Claims Tribunal after ruling that

the death of the deceased had been caused by the rash and negligent

driving of the respondent no.3 held the appellant, Insurance

Company, liable to pay compensation to the respondents No.1 and 2.

The respondent no.1 (in MAC APP No. 360/2009) is the father of the

deceased while the respondent no.2 is the mother, who was 45 years

of age at the time of his death. The Tribunal assessed the income of

the deceased to be in the sum of ` 11,500/- per month at the time of

his demise and held that the multiplier applicable to the said

multiplicand for the purpose of capitalizing and arriving at the loss of

dependency would be the multiplier of 14, keeping in view the fact

that the age of the mother of the deceased was 44 years on the date of

the accident and 45 years at the time of the filing of the petition. The

Tribunal then reasoned that the deceased being a bachelor must have

spent 50% of his income on himself and deducting half (1/2) from the

income of the deceased, computed the total loss of dependency to be

in the sum of ` 9,66,000/-, to which the Tribunal added non-

pecuniary damages for the loss of love and affection, funeral expenses

and loss of estate and thus held the total compensation to be in the

sum of ` 10,31,000/- (including the amount of interim award paid to

the claimants) with interest @ 7.5 % per annum from the date of the

filing of the petition till its realization.

4. Aggrieved from the aforesaid award, the parents of the

deceased, who were the claimants before the Tribunal, and the

insurance company, which was the insurer of the offending vehicle,

being the Santro car, have both appealed against the same, the former

for the enhancement of the compensation and the latter for scaling it

down.

5. The appellants assailed the award on the ground that the

Tribunal has erred in not taking into account the future prospects of

the deceased who was a graduate and who at the age of 22 years or

say 23 years was earning a sum of ` 11,500/- per month. Mr. Uday

Bhan Singh, the learned counsel for the appellants contended that the

deceased apart from giving tuitions from which he was earning a sum

of ` 84000/- per annum, was earning a further sum of 4500/- per

month as evidenced by his salary certificate dated 10th February, 2005

(Ex.PW1/6), which shows that his last drawn salary was ` 4500/- per

month. Reference was made by him to the documents Ex.PW1/4 -

copy of the graduation marksheet of the deceased, Ex.PW1/5 - the

income tax returns of the deceased for the assessment years 2004-05

and 2005-06 and Ex.PW1/7 - the tuition fees details issued by the

Welfare Association.

6. The document Ex.PW1/4 indisputably shows that the deceased

was a graduate. The two income tax returns of the deceased for the

assessment years 2004-05 and 2005-06, collectively marked as

Ex.PW1/5, show that the income of the deceased was ` 48,000/- per

annum for the assessment year 2004-05 and was ` 84,000/- per

annum for the assessment year 2005-06. Document Ex.PW1/6, as

stated above, is the salary certificate of the deceased which is issued

by a Limited Company and Ex.PW1/7 are the tuition fee details

issued by the Welfare Association concerned.

7. The above documentary evidence is corroborated by the

testimony of PW1, the respondent no.1 (Jai Chand Sharma) and PW3

(wrongly recorded as PW2 by the Tribunal), the respondent no.2

(Smt. Raj Bala). PW4 (wrongly recorded as PW3 by the Tribunal),

Mr. Ashok Kumar, son of Thakri Singh, testified that two of his sons,

Nitender Chauhan and Joginder Chauhan, were under the tutelage of

the deceased since the year 2002 till the time he died and were

attending his coaching classes. He deposed that he had signed

Ex.PW1/7 at point „X1‟. Though extensively cross-examined, his

testimony remained unshaken. PW5 (wrongly recorded as PW4 by

the Tribunal), Mr. Satpal Singh, son of Hari Singh, deposed that his

son Sumit had been attending the coaching classes of the deceased

and that the name of his son was mentioned on document Ex.PW1/7

at Serial no.7 and that his signatures were at point „X2‟ on the said

document. The testimony of this witness also survived the test of

cross-examination. No evidence in rebuttal was led by the

respondent-Insurance company.

8. Adverting to the income tax returns filed by the respondents,

exhibited as Ex.PW1/5 collectively, the said returns clearly reveal that

the income of the deceased accrued from private tuitions and that at

the time of his death, his income was ` 84,000/- per annum which

was not taxable after grant of rebate under Section 88D of the Income

Tax Act. Thus, clearly, the deceased was a private tutor and his

income from private tuitions was not less than ` 84,000/- per annum,

i.e. ` 7000/- per month. Ex.PW1/7 (Colly.), which has been proved

on record by two independent witnesses viz., PW4 and 5 even sets out

the names of the students who were under the tutelage of the deceased

and is signed by a parent of each of the said students. These records

have not been controverted by the appellant Insurance Company by

adducing any evidence in rebuttal nor sworn testimonies of PW4 and

PW5 have been shaken in the least bit. Further, document Ex.PW1/7

when read with the income tax returns of the deceased leads to the

inescapable conclusion that the deceased was rendering private

tuitions. The claim of the Insurance Company that the income tax

returns have been filed with the purpose of obtaining loan by the

deceased, which incidentally is the only ground set up by the

Insurance Company for disbelieving the income tax returns is not

substantiated and there is not even an iota of evidence on record to

show that the deceased had taken any loan from anywhere. Even the

purpose of the loan has not been stated by the insurance company and

only a bald allegation is sought to be made that the Income tax returns

had been filed by the deceased with the purpose of obtaining loan.

Clearly, the income tax returns were filed much prior to the death of

the deceased and, therefore, must be held to clearly depict the income

of the deceased.

9. There is also no reason to disbelieve the salary certificate

Ex.PW1/6 which is signed by the authorised signatory of a Limited

Company, viz., M/s. Ping Pong Marketing Ltd. This certificate

clearly shows that the deceased had entered into the service of the

said Limited Company from 1st October, 2005 and that his last drawn

salary was ` 4500/- per month. The salary certificate has been

proved on record by PW1 and PW3. Not even a suggestion has been

put to either of the said witnesses that the salary certificate is a fake

document and there does not, therefore, appear to be any cogent

reason for this Court to disbelieve the same. More so, as it is clear

from the record that it was after the filing of the income tax return for

the assessment year 2005-06 that the deceased took up employment

with the aforesaid company, possibly to augment his income.

10. It also emerges from the record that the income of the deceased

was steadily increasing as is evident from the fact that his income tax

returns show that while he was earning ` 4000/- per month in the

accounting year 2003-04, his income increased to ` 7000/- per month

in the accounting year 2004-05 and would have risen to ` 11,000/-

per month for the accounting year 2005-06, had he lived to file his

income tax return for the year 2006-07. There is, therefore, no

conceivable reason as to why the Tribunal in such circumstances,

while believing his income to be in the sum of ` 11,500/- per month

came to the conclusion that there was nothing on record to suggest

that he had bright future prospects, "or that income could have

ameliorated (sic.)..." It is, thus, deemed expedient to recalculate the

loss of dependency of the appellants, upon which exercise I now

embark.

11. In the case of Sarla Verma and Ors. vs. Delhi Transport

Corporation & Anr. (2009) 6 SCC 121, the Hon‟ble Supreme Court

has laid down that in view of the imponderables and uncertainities, as

a rule of thumb, an addition of 50% of the actual salary should be

made to the actual salary income of the deceased towards the future

prospects where the deceased has a permanent job and is below 40

years of age. Thus calculated, the income of the deceased works out

to ` 11,500/- + ` 5750/- = ` 17,250/- per month. Deducting one-

half therefrom towards the personal expenses and maintenance of the

deceased, in consonance with the dicta laid down in Sarla Verma's

case (supra), the loss of dependency per month of the respondents

works out to be ` 8625/- per month, i.e. ` 1,03,500/- per annum.

The age of the mother of the deceased at the time of the accident as

per the ration card Ex.PW1/1 was less than 45 years. For the age

group of persons between 41-45 years, the multiplier specified in the

Second Schedule to the Motor Vehicles Act, 1988 is 15 as per the

Second Schedule. However, the multiplier of 14 has been applied by

the learned Tribunal on the ground that in the case of Sarla Verma

(supra), the Hon‟ble Supreme Court approved of the multiplier of 14

for the age group of persons between 41 to 45 years. Applying the

aforesaid multiplier, the total loss of dependency on account of the

death of the deceased works out to ` 1,03,500/- x 14 = ` 14,49,000/-.

The contention of the appellant Insurance Company that the

multiplier should have been 13 is, therefore, being noted for the

purpose of being rejected.

12. As regards the non-pecuniary damages, the learned Tribunal

has awarded a sum of ` 50,000/- towards loss of love and affection

and the emotional trauma caused to the parents of the deceased,

` 10,000/- towards the funeral expenses and ` 5000/- on account of

loss of estate of the deceased. I see no cogent reason to interfere with

the said award which appears to be justified. Accordingly, the award

amount is enhanced by a sum of ` 4,18,000/- (14,49,000 -

10,31,000) with a direction to the Insurance Company to make the

payment of the same to the appellants within one month from today

with interest thereon @ 7.5% per annum as awarded by the Tribunal.

The rest of the award is sustained as no interference with the same is

called for.

13. Before parting with the case, it may be noted that the Insurance

Company in the instant case has preferred an appeal for reduction of

the award amount by the appellants without first obtaining the

permission of the Motor Accident Claims Tribunal under the

provisions of Section 170 of the Act. The learned counsel for the

Insurance Company made an attempt to argue that this was the

precise grievance of the Insurance Company, in as much as though an

application under Section 170 of the Act was filed before the learned

Tribunal, the Tribunal did not choose to pass any orders thereon,

though the Insurance Company was afforded full opportunity to cross

examine the witnesses of the appellants in view of the fact that the

respondent-driver/owner was not contesting the case.

14. The counsel for the appellants on the other hand submitted that

the respondent-driver/owner had cross-examined the eye-witness to

the accident and was thereafter proceeded ex parte on 28th April,

2009. So there was no occasion for the Insurance Company to move

an application under Section 170 of the Act. The said application, it

is urged, was surreptitiously slipped into the trial court records

without even affixing court fees stamps thereon. The application is

also without an affidavit and keeping in view the fact that neither the

court fees stamps are affixed on it nor it is supported by an affidavit,

nor it is signed by the authorized signatory of the appellant-Insurance

Company, the possibility of it being slipped in unnoticed, at a

subsequent stage, cannot be ruled out.

15. Be that as it may, there does not appear to be any need for this

Court to embark upon this issue in view of the findings rendered

hereinabove.

16. Both the appeals are disposed of accordingly.

REVA KHETRAPAL (JUDGE) February 7, 2011 sk