Delhi High Court
New India Assurance Co. Ltd vs Smt. Baby & Ors on 30 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th July, 2012
+ MAC. APP. 117/2012
NEW INDIA ASSURANCE CO. LTD....... Appellant
Through: Mr. L.K.Tyagi, Adv.
versus
SMT. BABY & ORS. ..... Respondents
Through Mr. Anshuman Bal, Adv. for
R-1 to R-5.
Mr. Satish Kumar, Adv. for
R-6.
+ MAC. APP. 459/2012
SMT. BABY & ORS. ...... Appellants
Through: Mr. Anshuman Bal, Adv.
versus
RAJU & ANR. ..... Respondents
Through Mr. Satish Kumar, Adv. for
R-1.
Mr. L.K.Tyagi, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Cross Appeals arise out of a judgment dated
17.12.2011 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby a compensation of `18,91,265/- was
awarded in favour of Respondents No.1 to 5 for the death of
Mahesh Chand in a motor vehicle accident which occurred on
11.06.2010.
2. For the sake of convenience, the Appellant in MAC
APP.117/2012 shall be referred to as the Insurance Company
and the Appellants in Cross MAC APP.459/2012 shall be
referred to as the Claimants.
3. The sole ground of challenge raised by the Appellant Insurance
Company is that the offending vehicle was a private vehicle but
was being used for hire and reward and thus, the Insurance
Company had no liability to pay the compensation.
4. On the other hand, it is urged on behalf of the Claimants that
there is no evidence on record to show that the vehicle was
being used for hire and reward. It is stated that the deceased
Mahesh Chand was a self employed person whose income was
gradually increasing on year to year basis. The Claims
Tribunal, however, did not make any addition towards the
future prospects.
5. The onus to prove that the offending vehicle was being used for
hire and reward was on the Appellant Insurance Company.
However, no evidence whatsoever was produced by the
Appellant in this regard. On the other hand, R1W1
Harshvardhan's testimony reveals that the owner had invited the
deceased as well as R1W1 for a trip to Dehradun. Relevant
portion of cross-examination of R1W1 conduced on behalf of
the Appellant Insurance Company is extracted hereunder:-
"XXXX By Sh. N.K. Pare, counsel for respondent No.2.
I boarded the car No.DL-5CB-9826 from Sunder Nagari,
near to my house. I got call from owner/driver of the car
Mr. Raju to come and join us our trip to Dehradun.
There was one more passenger in the car, a boy whose
name I do not know who also joined our trip to
Dehradun. One Sh. Mahesh (deceased) also joined our
trip in the car from Bhopura village."
6. Simply because one of the co-occupants of the vehicle was
mentioned as a passenger it would not show that the vehicle was
being used for hire and reward. The Appellant Insurance
Company thus, failed to discharge the onus that there was
breach of the terms of policy. The contention raised on behalf of
the Appellant Insurance Company is, therefore, rejected.
7. In order to prove the deceased's income, the Claims Tribunal
examined PW-3 Anil Kumar Verma, Inspector in the Income
Tax Department. The deceased's income for three years is
extracted hereunder:-
2007-2008 = `1,08,432/-
2008-2009 = `1,18,614/-
2009-2010 = `1,65,001/-
8. It is, therefore, evident that the deceased's income from
business was gradually increasing.
9. Since, the deceased's income was increasing gradually; I would
adopt his income for the last three years to compute the loss of
dependency. In Sarla Verma v. Delhi Transport Corporation
2009 6 SCC 121, the Supreme Court simply stated that in case
of self employed persons usually actual income at the time of
death should be considered. Since, in this case the income was
gradually increasing and the deceased was aged 38 years, I
would grant him future prospects on the scale of Sarla Verma
(supra) i.e. 50%.
10. The deceased's average income comes to `1,30,682/- on which
there was no liability to pay the income tax. On adding 50%
towards the future prospects and deducting one-fourth towards
the personal and living expenses, as the number of dependents
even if father is excluded were four, and adopting the multiplier
of 15, the loss of dependency would come to `22,05,258/-
(1,30,682/- + 50% x 3/4 x 15).
11. I would add a sum of `25,000/- towards loss of love and
affection, `10,000/- each towards loss of consortium, funeral
expenses and loss to estate. The overall compensation comes to
`22,60,258/-.
12. The enhanced compensation of `3,68,993/- shall carry interest
@ 7.5% per annum from the date of filing of the Petition till its
payment.
13. Appellant Insurance Company is directed to deposit the
enhanced compensation along with proportionate interest within
six weeks in UCO Bank, Delhi High Court, New Delhi.
14. 15% of the enhanced compensation along with proportionate
interest shall be payable to the Claimants No.2 to 5. Rest 40%
along with proportionate interest shall enure for the benefit of
the First Claimant.
15. Compensation payable to Claimants No.2 to 4 shall be held in
fixed deposit till they attain the age of 21 years. 80% of the
compensation payable to the Claimant No.1 shall be held in
fixed deposit for a period of two years, four years, six years and
eight years. Rest 20% shall be released on deposit.
16. Similarly, 60% of the compensation payable to Claimant No.5
shall be held in fixed deposit for a period of two years and four
years and rest shall be released to him on deposit.
17. MAC APP.117/2012 filed by the Appellant Insurance Company
is devoid of any merit; the same is accordingly dismissed.
18. MAC APP.459/2012 filed by the Claimants is allowed in above
terms.
19. The statutory deposit of `25,000/- be refunded to the Appellant
Insurance Company.
20. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 30, 2012
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