Delhi High Court
New India Assurance Co. Ltd. vs Bharti Goel & Ors. on 19 November, 2012
Author: G.P. Mittal
$~ 7, 8, 9 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19th November, 2012
+ MAC. APP. 548/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Ms. Shivali Bansal, Advocate
versus
BHARTI GOEL & ORS. ..... Respondents
Through Mr. N.K. Jha, Advocate for the
Respondents No.1 to 4.
+ MAC. APP. 549/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Ms. Shivali Bansal, Advocate
versus
BHARTI GOEL & ORS. ..... Respondents
Through Mr. N.K. Jha, Advocate for the
Respondent No.1.
+ MAC. APP. 557/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Ms. Shivali Bansal, Advocate
versus
MAC. APP.Nos.548/2011, 549/2011, 557/2011 & 645/2011 Page 1 of 9
BABY PRIYANGANA GOEL & ORS. ..... Respondents
Through Mr. N.K. Jha, Advocate for the
Respondent No.1.
+ MAC. APP. 645/2011
BHARTI GOEL & ORS. ..... Appellants
Through Mr. N.K. Jha, Advocate
versus
MOHD. NADEEM KHAN & ORS. ..... Respondents
Through Ms. Shivali Bansal for the Respondent
No.3 Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These four Appeals (MAC.APP.548/2011, MAC. APP.549/2011, MAC.
APP.557/2011 and MAC. APP.645/2011) arise out of a common
judgment dated 30.03.2011 passed by the Motor Accident Claims
Tribunal(the Claims Tribunal) whereby three Claim Petitions being Suit
No.229/2010, Suit No.230/2010 and Suit No.232/2010 were allowed and
compensation was awarded in favour of the Claimants for the injuries
suffered by Baby Priyangana Goel(Suit No.229/2010), Smt. Bharti
Goel(Suit No.230/2010) and for the death of Achal Goel (Suit
No.232/2010).
2. The compensation awarded in the three Claim Petitions is extracted
hereunder in a tabulated form:
(Suit No.229/2010)
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Medicines and Medical `5,000/-
Treatment
2. Pain and Suffering ` 30,000/-
3. Conveyance and Special ` 18,000/-
Diet
Total ` 53,000/-
(Suit No.230/2010)
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Medicines and Medical `5,000/-
Treatment
2. Loss of Wages ` 31,120/-
3. Pain and Suffering ` 35,000/-
4. Conveyance and Special ` 16,000/-
Diet
Total ` 87,120/-
(Suit No.232/2010)
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Loss of Financial `10,19,812/-
Dependency
2. Loss of Love and ` 10,000/-
Affection
3. Loss of Consortium ` 10,000/-
4. Funeral Expenses ` 10,000/-
5. Loss to Estate ` 10,000/-
Total ` 10,59,812/-
3. The only ground of challenge raised in MAC. Appeals No.548/2011,
549/2011 and 57/2011 is that this was a head-on collision between an
Indica Car No.MP-09-HD-6137 being driven by deceased Achal Goel
and Tata Truck 207 No.UP-92B-0620. Thus, it was a case of
contributory negligence and the entire liability to pay the compensation
should not have been fastened on the insured and consequently on the
Appellant being the insurer of the vehicle.
4. On the other hand, in Cross-Appeal (MAC.APP.645/2011) preferred by
the legal representatives of deceased Achal Goel it is stated that the
compensation awarded is abysmally low. The Claims Tribunal erred in
declining to believe the deceased's income to be `20,000/- per month in
spite of clear testimony of PW2 in this regard. In any case, the deceased
annual income of `1,20,000/- from salary was proved by the Income Tax
Returns for the previous two years. The deceased was in permanent
employment of M/s. Som Projects Pvt. Ltd., he was, therefore, entitled to
an addition of 50% on account of future prospects. Reliance is placed on
Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6
SCC 121.
NEGLIGENCE:
5. In order to prove the negligence, the Claimants examined PW1 Smt.
Bharti Goel who was an occupant of the Indica Car and Petitioner in the
two Claim Petitions. She was categorical that the accident was caused on
account of rash and negligent driving of Tata Truck 207 No.UP-92B-
0620. There was no rebuttal to PW1's testimony as the driver and the
owner of Tata Truck 207 No.UP-92B-0620 preferred not to contest the
proceedings. The Appellant Insurance Company also did not lead any
evidence to rebut PW1's testimony.
6. The learned counsel for the Appellant drew my attention to the site plan
prepared in the criminal case in support of her contention that it was a
head-on collision. The site plan shows that the Indica Car was
proceeding from West to East on the northern side of the carriageway
which was meant for the traffic going towards East. The offending
vehicle came on the wrong carriageway, that is, on the northern
carriageway instead of the southern carriageway; perhaps, because of
some construction work being carried on the southern carriageway. In
such circumstances, it was the duty of the driver of the Tata Truck 207
No.UP-92B-0620 to be extra cautious as he had no right of way on the
northern carriageway. As stated above, the driver of Tata Truck 207
No.UP-92B-0620 has not come forward to give any explanation or to
rebut PW1's testimony. In the circumstances, the Claims Tribunal's
finding on negligence cannot be faulted.
7. Consequently, MAC. APP. Nos.548/2011, 549/2011 and 557/2011 are
hereby dismissed.
8. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
9. Pending Applications stand disposed of.
10. A copy of the judgment be sent to the concerned Claims Tribunal for
information.
QUANTUM:
11. The learned counsel for the Claimants has taken me through the
testimony of Som Prakash Garg(PW2), Director, M/s. Som Projects Pvt.
Ltd. and the salary certificate Ex.PW1/4. PW2 testified that the deceased
Achal Goel was working in their company for the last about three years.
He was promoted to the post of Project Manager on 21.03.2007 and was
drawing a salary of `20,000/- per month. In cross-examination, the
witness deposed that the deceased joined at a salary of `10,000/- per
month and within three years, his salary was increased to `20,000/- per
month. In cross-examination, the witness stated that no appointment
letter is issued by their company to any employee. He deposed that the
salary paid to all the employees of the company is reflected in the
consolidated form in their Annual Return. He deposed that salary of
`20,000/- per month was paid to the deceased Achal Goel in cash. He
added that he had not brought the receipt of payment of salary of
`20,000/-.
12. The deceased met with an unfortunate death in the accident which
occurred on 23.06.2007. The Claimants have put forward a case that he
was promoted w.e.f. 21.03.2007, that is, three months before the date of
the accident. Apart from salary certificate Ex.PW1/4, no other document
was proved to show that the deceased was getting a salary of `20,000/-
per month. Although, PW2 claimed that the salary of the employees is
reflected in its consolidated Return; the said consolidated Return was not
produced by the Claimants. The Income Tax Returns filed for the A.Ys.
2006-07 and 2007-08 reveal that deceased Achal Goel received an
income of `1,20,000/- annually. He had an income of `650/- from bank
interest on the savings bank account. If his salary had increased from
`10,000/- to `20,000/- per month, there would have been consequent
increase reflected in the Income Tax Return for the A.Y. 2007-08, even
may be for just ten days salary. In the circumstances, the Claims
Tribunal rightly discarded the Claimant's version that the deceased's
salary was `20,000/- per month.
13. The Claims Tribunal took the deceased's salary to be `90,650/- per
annum to compute the loss of dependency, deducted 1/4th towards
personal and living expenses(considering the number of dependents to be
4) and applied a multiplier of 15 as the deceased was aged 36 years to
compute the loss of dependency as `10,59,812/-. A perusal of the
Income Tax Return reveals that the deceased got a rebate of `30,000/- in
payment of Income Tax because of savings on this amount under Section
88 of the Income Tax Act. Even these savings could not have been
deducted from the deceased's income to compute the loss of dependency.
Moreover, from PW2's testimony Income Tax Return filed for the A.Ys.
2006-07 and 2007-08, it was established that the deceased was in
permanent employment. He was a graduate from Delhi University and
had obtained Post Graduate Diploma in Management from Indira Gandhi
Open University. Taking all the circumstances together, the Claimants
ought to have been granted an addition of 50% towards future prospects.
The loss of dependency thus comes to `20,08,125/-(`1,20,000/- 1000/-
(Income Tax) + 50% x 3/4 x 15).
14. In addition, the Claimants are awarded a compensation of `25,000/-
towards loss of love and affection and `10,000/- each towards loss of
consortium, loss to estate and funeral expenses.
15. The overall compensation thus comes to `20,63,125/- as against an award
of `10,59,812/-.
16. Consequently, the compensation stands increased by `10,03,313/- which
shall carry interest @ 7.5% per annum from the date of filing of the
Petition till its payment. 15% of the compensation shall be payable to
each of Appellants No.2, 3 and 4, rest 55% shall enure for the benefit of
the First Appellant. 75% of the amount payable to the First Appellant
shall be held in fixed deposit for a period of four years, eight years and
twelve years in equal proportion, rest 25% shall be released on deposit.
75% of the amount payable to Appellants No.3 and 4 shall be held in
fixed deposit for a period of two years, rest shall be released to them on
deposit. The amount payable to Appellant No.2 shall be held in fixed
deposit till she attains the age of 21 years. All the Appellants shall be
entitled to payment of quarterly interest.
17. The Respondent No.3 New India Assurance Co. Ltd. is directed to
deposit the enhanced amount of `10,03,313/- along with interest with the
Claims Tribunal within six weeks.
18. The Appeal (MAC.645/2011) is allowed in above terms.
19. Pending Applications stands disposed of.
20. A copy of the judgment be sent to the concerned Claims Tribunal for
information.
(G.P. MITTAL)
JUDGE
NOVEMBER 19, 2012
pst
