Delhi High Court
The New India Assurance Co Ltd vs Smt Arunima Gaur & Ors on 2 December, 2014
$~A-27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 02.12.2014
+ MAC.APP. 510/2013
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr.K.L.Nandwani, Advocate.
versus
SMT ARUNIMA GAUR & ORS ..... Respondents
Through Mr.S.N.Parashar, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. The present appeal is filed seeking to impugn the award dated
08.03.2013.
2. The brief facts are that on 02.12.2006 late Sh.Chander Mohan Gaur
was going in an Alto car from ISBT Dehradun to his house at Patel Nagar,
Dehradun. The car hit one dumper/truck which was said to be parked on the
wrong side of the road without any parking lights, head lights or any other
indication. As a result of the accident, the deceased sustained fatal injuries.
3. Based on the evidence on record, the Tribunal concluded that the
accident took place due to the negligent parking of the truck by its driver.
On compensation the Tribunal awarded a total compensation of
Rs.42,02,719/- as follows:-
Loss of dependency Rs.40,72,719/-
Loss of love and affection Rs.1,00,000/-
Loss of Estate Rs.10,000/-
Funeral Expenses Rs.10,000/-
Loss of consortium Rs.10,000/-
Total Rs.42,02,719/-
4. A perusal of the award shows that the Tribunal noted that the
deceased was 44 years old and he was employed as Under Secretary with
Vidhan Sabha Sachivalaya, Dehradun, Uttrakhand and was getting pre-
revised salary of Rs. 20,140/- per month. The salary was subsequently prior
to the accident revised to Rs.25,960/-. Based on the evidence on record, the
Tribunal took the salary as Rs. 25,960/- per month. The Tribunal deducted
10% towards income tax and net taxable income was assessed at
Rs.2,98,368/- p.a. A multiplier of 14 was adopted. Future prospects of 30%
were added. 1/4th was deducted towards personal and living expenses as the
deceased was survived by his wife, minor daughter and parents. Total loss of
financial dependency was calculated at Rs.40,72,719/-.
5. Learned counsel appearing for the appellants has made various
submissions to impugn the award. He firstly submits that the Tribunals in
Delhi did not have territorial jurisdiction as the deceased and his family
including the claimants were not residents of Delhi. He secondly submits
that it was a case of contributory negligence as the truck was parked on the
extreme right side and the deceased hit the truck. Hence, he was also equally
negligent while driving the car and in causing the accident. He also submits
that the evidence of the eye witness PW-3 relied upon by the Tribunal
cannot be believed as he was not on the list of witnesses in the criminal
court. Hence he was a planted witness. The next submission of the learned
counsel for the appellant pertains to the computation of loss of dependency.
He submits that the wife of the deceased has been granted employment on
compassionate grounds by the Legislative Assembly of the State of
Uttrakhand and accordingly, the compensation amount has to be reduced
taking into account the benefits earned by the wife. It is further submitted
that the Tribunal has wrongly deducted 10% toward income tax from the
salary of the deceased and that the same should have been deducted @ 30%.
It is lastly submitted that the dependents can only be taken to be 3 inasmuch
as the father is not a dependent and hence, 1/3rd should have been deducted
for personal and living expenses.
6. On the issue of jurisdiction, I may note that a perusal of the award
shows that no submissions of the appellant are noted regarding the Tribunal
not having the territorial jurisdiction to deal with the matter. It is apparent
that no such submission was made before the Tribunal.
7. Section 166 (2) of the Motor Vehicles Act, 1988 provides that claim
petition can be filed either within the jurisdiction over the area where the
accident has occurred or in the tribunal within the local jurisdiction where
claimants reside or carry on business, etc. The claimants/respondents No.1
to 4 have described themselves to be a resident of Vikas Puri and their
second address is of Dehradun. PW-2 in her cross-examination confirms that
she has been residing in Delhi. Respondent No.2 has been staying in Delhi
till 2007 as she was studying here. She further confirms that she is holding
the Voter I-Card and Ration Card at the Delhi address and these had to be
surrendered after her employment at Dehradun. She further submits that
they were staying in a rented accommodation and that they stayed in Delhi
for five to six years.
8. In my opinion, there is sufficient evidence on record to show that
claimants were residents of Delhi. Hence, I do not accept the said contention
of the learned counsel for the appellant. The same has no merits.
9. Coming to the next argument that there was contributory negligence
of the deceased and the truck driver. PW-3 Sh.Satish Kumar in his evidence
by way of affidavit has said that he saw the accident. As per his evidence,
the dumper was parked on the middle of the road without any parking light
on, without head light on or without any indication. The Alto Car was
coming at a normal speed. Due to heavy fog and darkness the driver of the
Alto Car could not see the truck parked in the middle of the road due to
which the said Alto car rammed into the truck. In his cross-examination he
states that he is not aware as to whether he had been cited as a witness in the
criminal case. He however states that the police got his signatures on his
statement. He reiterates that the police had taken his statement first and
thereafter the statement of 3 to 4 other persons. It is also on record that the
charge sheet has been filed against the driver of the truck.
10. At this stage, I may also note that the evidence of R4W1 Sh. Rajesh
Kaintura, driver of the offending truck. In his evidence he states that he had
parked his vehicle on the correct side as the front lights were not functioning
properly. He was sleeping in the vehicle. In his cross-examination he accepts
that there is no parking place where he had parked his vehicle and that he
did not use the parking lights. He also submits that it is correct that it was
winter season. He reiterates that he had parked his vehicle on the road which
was not a parking place.
11. In the light of the evidence of PW-3, R4W1 and the chargesheet, it is
obvious that the accident took place due to the negligence of the driver of
the offending truck. There is no merit in the contention of the appellant that
it was a case of contributory negligence.
12. Coming to the next argument regarding the deduction of income tax
@ 10% as argued by the learned counsel for the appellant. A perusal of the
Award shows that the Tribunal has dealt with the said issue in meticulous
details. The Tribunal notes that the income tax applicable for Rs.1,80,000/-
per annum to Rs. 5 lacs per annum is 10%. The income of the deceased was
taken as Rs.3,11,520/- and accordingly deducted 10% from the taxable
income i.e. Rs.31,152/-. There is no reason to disagree with the said findings
recorded by the Tribunal.
13. On the next question of compassionate employment, it is admitted
fact that the widow of the deceased has been appointed by the U.P
Legislating Assembly as a stenographer. The Supreme Court in the case of
Vimal Kanwar & Ors. vs. Kishore Dan and Ors, 2013 ACC 1441 in para 20
held as follows:-
"20. The second issue is "whether the salary receivable by the
claimant on compassionate appointment comes within the
periphery of the Motor Vehicles Act to be termed as
"Pecuniary Advantage" liable for deduction."
"Compassionate appointment" can be one of the
conditions of service of an employee, if a scheme
to that effect is framed by the employer. In case,
the employee dies in harness i.e. while in service
leaving behind the dependents, one of the
dependents may request for compassionate
appointment to maintain the family of the deceased
employee dies in harness. This cannot be stated
to be an advantage receivable by the heirs on
account of one's death and have no correlation
with the amount receivable under a statute
occasioned on account of accidental death.
Compassionate appointment may have nexus with
the death of an employee while in service but it
is not necessary that it should have a
correlation with the accidental death. An
employee dies in harness even in normal course,
due to illness and to maintain the family of the
deceased one of the dependents may be entitled
for compassionate appointment but that cannot be
termed as "Pecuniary Advantage" that comes
under the periphery of Motor Vehicles Act and
any amount received on such appointment is not
liable for deduction for determination of
compensation under the Motor Vehicles Act."
14. In the light of the above legal position, merely because one of the
claimants has received compassionate appointment in the UP State
Assembly on the death of the deceased would not be a ground to reduce the
compensation amount.
15. Next issue pertains to the deduction of 1/4th as personal expenses of
the deceased. The deceased is survived by his wife-respondent No. 1,
daughter respondent No.2 (minor) and the parents. Normally, the father
would not be a dependent on the deceased unless circumstances are shown
where it can be said that he was dependent upon the deceased. As per PW-2,
namely, the wife of the deceased respondent No.1, the father of the deceased
is a legal representative of the deceased and is 80 years old. Given the age of
the father and the fact that PW-2 was not cross-examined on this aspect, I
accept the deduction of 1/4th as personal expenses from the assessed income
of the deceased by the Tribunal is correct.
16. Accordingly, there is no merit in the present petition. The appeal is
dismissed. All interim orders stand vacated.
17. The statutory amount may be refunded to the appellant.
DECEMBER 02, 2014/rb JAYANT NATH, J
