National Insurance Company Ltd. vs Smt.Sushma Yadav & Ors.
2011 Latest Caselaw 3453 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 20.7.2011


+                  MAC APPEAL No.7/2009


NATIONAL INSURANCE COMPANY LTD.     ...........Appellant
                 Through: Ms.Manjusha Wadhawa,
                          Advocate.

                   Versus

SMT.SUSHMA YADAV & ORS.                        ..........Respondents
                 Through:            Mr.Gulab Chandara, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the Award dated 16.10.2008 vide

which the Tribunal had awarded compensation in the sum of

Rs.13,85,494/- to the claimants.

2. The facts as emanated are that on 04.5.2003 at about 9.00

PM the deceased along with his friends were going from his

residence Madhu Vihar to Naraina to attend a marriage function

in a car being driven by the deceased when a truck driven by

respondent lno.6 in a rash and negligent manner hit the car of the

deceased. Deceased fell down; he was taken to the hospital where

he was declared dead. The claimants were his wife, minor

children and old parents. Claim petition had been filed under

Section 166 of the Motor Vehicle Act (hereinafter referred to as

"the M.V.Act").

3. This appeal has been filed by the insurance company. The

contention before this court is that the only evidence before the

Tribunal was about the salary of the victim which was Rs.4200/-

per month as is evident from the testimony of PW-2 who had

proved the salary certificate of the victim as Ex.PW-2/2. This

establishes that the victim was drawing a salary of Rs.4200/- per

month. The Tribunal has wrongly relied upon his income tax

returns which reflect business income; contention being that even

after the death of the deceased his family did not suffer any loss

as the taxi service was still continuing. It is pointed out that the

Tribunal had appreciated the evidence led before it; after

considering the testimony of PW-1 who was the widow of the

victim and had admitted that the work of the taxi was still going

on and the taxi is still plying; it had rightly recorded a fact finding

that the survivors are thus getting income from the plying of the

taxi and there is no loss of income on this count. Yet it had

thereafter chosen to rely on the Income Tax Return which had

rejected business income. Record shows that the petitioners/

claimants had placed on record three income tax return of the

victim for the year 2000-01, 2001-02, 2002-03 and 2003-04. Out of

these income tax returns only one had been proved through the

version of R3W1 who had brought the income tax for the year

2003-04 which had been filed on 11.7.2003 (which was admittedly

after the date of the death of the victim). Victim had died in the

accident on 04.5.2003. The tax returns for the other previous

year has also been considered by the Tribunal and after taking the

average of three income tax returns the Tribunal had recorded a

finding that the income of the deceased was Rs.75,583/- per

annum which was approximately Rs.6298/- per month.

4. Learned counsel for the appellant has pointed out that this

finding is an illegality as the two income tax returns show that

there is no income from salary whereas the income tax return for

the year 2003-04 shows that the salary income was Rs.21,301/-;

this is contrary to the documentary evidence i.e. the salary

certificate which reflects the salary of the victim as Rs.4200/- per

month. These tax returns also show that there is income from the

business. There is no evidence of any other business being

carried out by the petitioner except that of plying of a taxi;

Tribunal had already recorded a fact finding that the taxi was still

being plying and there has been no loss on this count. In these

circumstances the Tribunal relying upon this income tax return

which was contrary to the salary certificate adduced by the

claimant has committed an illegality. These tax returns appear to

be false and fabricated documents and do not support the initial

stand of the claimant that the victim was getting salary of

Rs.4200/- per month.

5. This finding is accordingly liable to be set aside. The salary

of the victim is accordingly assessed at Rs.4200/- per month.

6. Future prospects have, however, not been considered.

There was no reason to ignore it. The price index rise and cost of

inflation have to be taken into account. Keeping in view the fact

that the victim has a salaried job which salary was definitely likely

to increase in future. This has been noted by a catena of

judgments of Apex Court reported in 2008 ACJ 2182 Delhi Kanwar

Devi & Ors. Vs. Bansal Roadways & Ors., 2007 ACJ 2165 Lekh Raj

& Anr. Vs.Suram Singh & Ors. and 2009 ACJ 1921 (Delhi)

National Insurance Company Ltd. Vs. Renu Devi. Total

dependency calculated at the sum of Rs.13,85,494/- is thus liable

to be modified; the Tribunal had awarded excess amount by taking

into consideration the income tax returns which were apparently

forged documents being contrary to the salary certificate of the

petitioner.

7. The amount awarded under the head of loss of dependency

by taking future prospects would now be read as follows:

Rs.4200+Rs.2100=Rs.6300 x 12=Rs.75600 - Rs. 25200

(1/3rd of Rs. 75600) = Rs.50400 x 17= Rs.8,56,800/- .

8. Thus amount under the head of loss of dependency would

thus be Rs.8,56,800/-.

9. The amount of Rs.25,000/- awarded under the combined

heads of `love and affection', `funeral expenses' and `loss of

estate' does not require any modification. The modified awarded

amount would accordingly read as Rs.8,81,800/-; interest quotient

also calls for no interference. Appeal is disposed of accordingly.

INDERMEET KAUR, J.

JULY 20, 2011 nandan