New India Assurance Co Ltd vs Amar Sharma & Ors
2014 Latest Caselaw 6692 Del

$~8 & 9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of decision: 11.12.2014
+     MAC.APP. 477/2011
      NEW INDIA ASSURANCE CO LTD                    ..... Appellant
                          Through      Mr. Manish Kaushik, Adv. for Mr.
                                       K.L. Nandwani, Adv.
                  versus
      AMAR SHARMA & ORS                            ..... Respondents
                  Through              Mr. S.N. Parashar & Ms. Monika,
                                       Advs. for R-1 to 3.

+     MAC.APP. 947/2011
      AMAR SHARMA & ORS                                    ..... Appellants
                          Through      Mr. S.N. Parashar & Ms. Monika,
                                       Advs.
                   versus
      NEW INDIA ASSURANCE CO LTD & ORS       ..... Respondents
                   Through  Mr. Manish Kaushik, Adv. for
                            Mr. K.L. Nandwani, Adv.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. These are two appeals. MAC.APP. No.477/2011 is filed by the appellant Insurance Company seeking to set aside the award dated 10.02.2011. MAC.APP.No.947/2011 is filed by the claimants seeking enhancement of the compensation awarded.

MAC.APP. 477/2011

2. The present appeal is filed by the appellant insurance company. The brief facts which led to the filing of the claim petition is that the deceased

Ram Kumar Sharma was travelling in a maruti car on 14.1.2006 when he was hit by the offending vehicle coming from the opposite direction. As a result, deceased Ram Kumar Sharma suffer fatal injuries.

3. The issue centers around grant of recovery rights to the appellant and the compensation awarded.

4. The Tribunal, granted compensation of Rs.3,21,520/-. Loss of dependency was assessed at Rs.2,81,520/-. Balance non-pecuniary damages were awarded as follows:

         1. Towards loss of Estate                Rs.10,000/-
         2. Towards loss of Love and affection    Rs.10,000/-
         3. Towards funeral charges               Rs.10,000/-
         4. Towards loss of consortium            Rs.10,000/-
     Total                                        Rs.40,000/-

5. Learned counsel appearing for the appellant points out that on 18.11.2013 a submission of the appellant insurance company was recorded that in the appeal the appellants are seeking recovery rights against respondent nos.5 & 6 - owner and driver of the offending vehicle and that even if the award amount as deposited in court is released to the claimants without furnishing security, it will not affect the relief claimed by the appellant.

6. In view of above order, the appellant has been asked to confine himself to submissions regarding grant of recovery rights.

7. Learned counsel appearing for the appellant submits that the driving licence of the driver of the offending vehicle namely respondent no.6 has been found to be fake. He submits that evidence of the appellant company

from the office of RTO Ferozabad was produced which confirms that the driving licence is fake. He also submits that a notice under Order 12 Rule 8 CPC was served on the driver and owner of the offending vehicle namely respondent nos.5 & 6 and they have not produced any copy of the driving licence. Hence he submits that the appellant Insurance Company is entitled to grant of recovery rights.

8. A perusal of the award shows that the tribunal noted that the appellant has got verified the driving licence from RTO Ferozabad who has said that the driving licence in question is not in the name of respondent no.6. The tribunal further noted that the evidence of R4W1 (wrongly numbered as R1W1) is not reliable. The tribunal noted that the stand of the appellant that the driving licence is from Farukhabad is misplaced in as much as there is no such driving licence on record. As to how the appellant got this driving licence is not known. Hence the tribunal did not accept the contention of the appellant.

9. A perusal of the evidence of Mr. Tofiq, R2W1respondent no.5 the owner of the offending vehicle shows that he has in his affidavit by way of evidence confirmed that the driver of his vehicle had a driving licence issued on 15th February, 2001 and the same is on record. There is no question put to him in his cross-examination pertaining to this part of his evidence. Respondent no.7 Imtaiyaj Khan (R3W1) the driver in his affidavit by way of evidence repeats the said averment of respondent no.5 in his affidavit. In his cross-examination, he confirms that he has brought his driving licence. He confirms the copy Ex.PW2/M as the copy of the original driving licence issued to him by Agra Authority. He denies that the first driving licence was issued from Ferozabad.

10. In the light of the evidence on record, it is clear that there is nothing on record to show that the driving licence placed on record by respondent nos.5 & 6 is fake. The appellant insurance company has got verified some licence issued from Ferozabad without placing a copy of the same on record. There is no merits in the contention of the learned counsel for the appellant.

11. The appeal is accordingly dismissed.

MAC.APP. 947/2011

12. I will now deal with MAC.APP.No.947/2011.

13. Learned counsel appearing for the claimant/appellant submits that the compensation awarded by the tribunal is on the lower side. He submits that the tribunal assessed the income of the deceased on the basis of the last ITR filed prior to the date of the death of the deceased i.e. for the year 2005-06. The tribunal accepted the income of the deceased as Rs.90,000/- P.A. It is further averred that the deceased had hired a driver and was said to be paying a sum of Rs.43,080/- p.a. which given as salary to the driver. The Tribunal deducted the said salary of the driver from the assessed income. Hence assessed income was reduced to Rs.46,920/- P.A. for the purposes of computing loss of dependency. Thereafter 1/3rd has been deducted from personal expenditure of the deceased. Accordingly, for purposes of computing loss of dependency income was taken as Rs.31,280/- P.A. It is averred that there is a duplication in this procedure adopted by the Tribunal as the salary paid to the personal driver was a component of the expenditure on self of the deceased. The Tribunal has already deducted 1/3rd as expenditure on self by the deceased. He further submits that the deceased was 56 years of age. Hence it is alleged that after having assessed the income of the deceased the same has to be enhanced by 15 % on account of

future prospect.

14. Coming to the first contention of the learned counsel for the appellant there is merit in the said contention. The Tribunal has deducted expenditure on self by the deceased twice. Firstly it has deducted the salary of the driver kept by the deceased and for that a sum of Rs.43,080/- has deducted. Thereafter the Tribunal has also deducted 1/3rd of the assessed income for the personal expenditure of the deceased. On account of the same, the income for purpose of computing loss of dependency has been taken as Rs.31,280/-P.A. Rs.58,720/- has been deducted for personal expenditure of deceased. There is a clear duplication. There are no basis to deduct the salary of the driver which the deceased was getting inasmuch as the driver was also a facility being used by the family. Hence the income of the deceased has to be reduced by only 1/3rd on account of personal expenditure from the assessed income of Rs.90,000/- P.A.

15. As far as future prospect is concerned, keeping in view the age of the deceased the assessed salary is liable to be increased by 15 % on account of future prospect, keeping in view the judgment of the Hon'ble Supreme Court in the case of 'Rajesh vs. Rajbir Singh & Ors. (2013) 9 SCC 54'.

16. Coming to the non-pecuniary damages the Tribunal has awarded Rs.10,000/- for love and affection and Rs.10,000/- for loss of consortium. I hereby increase the sum from Rs.10,000/- to Rs.1,00,000/- respectively i.e. Rs.1,00,000/- for loss of love and affection and Rs.1,00,000/- for loss of consortium. The total compensation now reads as follows:-

         1. Loss of dependency                      Rs.6,21,000/-
         2. Loss of love and affection              Rs.1,00,000/-





         3. Towards loss of consortium             Rs.1,00,000/-
        4. Towards funeral charges                Rs.10,000/-
                        Total                     Rs.8,31,000/-

17. The Insurance company may deposit the additional compensation as per this order along with interest @ 7.5%p.a. from the date of filing of the claim petition till deposit with the Registrar General of the High Court. On the receipt of the said amount, the Registrar General should release the additional compensation to the claimant proportionally in the same manner as directed in the award. The present appeal stands disposed of. All interim orders stand vacated.

18. The appellant insurance company may be refunded if statutory amount deposited.

JAYANT NATH, J DECEMBER 11, 2014 km/ab