Delhi High Court
New India Assurance Company Ltd vs Indira Rani & Ors on 12 February, 2014
Author: Suresh Kait
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12th February, 2014
+ MAC.APP. 755/2010
NEW INDIA ASSURANCE COMPANY LTD ..... Appellant
Represented by: Mr. Abhishek Kumar, Adv.
Versus
INDIRA RANI & ORS ..... Respondents
Represented by: Mr. Amar Khera, Adv. for
R1 to R4.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is directed against the impugned award
dated 05.10.2010, whereby Ld. Tribunal granted compensation for a sum of
Rs.16,57,300/- with interest @ 7.5% per annum for a period of three years.
2. Brief facts of the case are that on 18.11.2005, deceased Dhan Singh
was going on his motorcycle No. DL-4S-AJ-0957 from Gurgaon to Nangloi.
At about 7.50 PM when he reached near bus stand, Village-Chawla, opposite
Govt. School, Delhi, within the jurisdiction of PS-Nazafgarh, New Delhi a
Truck bearing no. DL-1GA-8848 driven by its driver, respondent no. 6 in a
rash and negligent manner, came from the side of Bijwasan and overtook the
motorcycle of the deceased from wrong side, due to which, he was
sandwitched between the offending vehicle and the divider. The deceased
fell down on the road and came under the rear right side wheel of the
offending vehicle and died at the spot.
3. The above noted appeal has been filed mainly on the ground that on
the date of accident, deceased was 39 years of age and he was not in
employment. Despite that, Ld. Tribunal assessed the monthly income of the
deceased as Rs.7,418.75/- and further added 50% in his income towards
future prospects while awarding the compensation. Since the deceased was
not in an employment on the date of accident, as he was retrenched from his
employment, therefore there was no occasion before the Ld. Tribunal to add
50% in the income towards future prospects.
4. PW1, Indira Rani, wife of the deceased stated in her affidavit that the
deceased was in a private service and was earning Rs.12,500/- per month.
He used to work in S. Trading Engineers Service Centre Pvt. Ltd as a
Service Manager. It is further stated that the said factory was closed w.e.f
01.02.2005 and its employees were retrenched.
5. To strengthen her arguments, ld. Counsel for the appellant has relied
upon a case of Sanjay Verma v. Haryana Roadways in Civil Appeal no.
5256 of 2008 decided on 29.01.2014, wherein the Full Bench of the Apex
Court has held as under:
"13. Certain parallel developments will now have to be taken note
of. In Reshma Kumari and Ors. v. Madan Mohan and Anr.: (2009)
13 SCC 422, a two Judge Bench of this Court while considering the
following questions took the view that the issue(s) needed resolution
by a larger Bench
(1) Whether the multiplier specified in the Second Schedule
appended to the Act should be scrupulously applied in all the
cases?
(2) Whether for determination of the multiplicand, the Act
provides for any criterion, particularly as regards determination
of future prospects?
14. Answering the above reference a three Judge Bench of this
Court in Reshma Kumari and Ors. v. Madan Mohan and Anr.:
(2013) 9 SCC 65 (para 36) reiterated the view taken in Sarla Verma
(supra) to the effect that in respect of a person who was on a fixed
salary without provision for annual increments or who was self-
employed the actual income at the time of death should be taken
into account for determining the loss of income unless there are
extraordinary and exceptional circumstances. Though the
expression "exceptional and extraordinary circumstances" is not
capable of any precise definition, in Shakti Devi v. New India
Insurance Co. Limited and Anr.: (2010) 14 SCC 575 there is a
practical application of the aforesaid principle. The near certainty
of the regular employment of the deceased in a government
department following the retirement of his father was held to be a
valid ground to compute the loss of income by taking into account
the possible future earnings. The said loss of income, accordingly,
was quantified at double the amount that the deceased was earning
at the time of his death.
15. Undoubtedly, the same principle will apply for determination of
loss of income on account of an accident resulting in the total
disability of the victim as in the present case. Therefore, taking into
account the age of the claimant (25 years) and the fact that he had
a steady income, as evidenced by the income-tax returns, we are of
the view that an addition of 50% to the income that the claimant
was earning at the time of the accident would be justified."
6. On perusal of the trial court record and going through the impugned
award, it is established that after retrenchment from the job, the deceased
had started his own business. After the death, respondent no. 1 filed the
Income Tax Returns on behalf of the deceased which are Ex.P2 and Ex.P3
for the period from 01.04.2004 to 31.03.2005 and for the period from
01.04.2005 to 18.11.2005 respectively.
7. Ld. Tribunal has not considered the Income Tax Returns, Ex.P2 and
Ex.P3 and while relying upon the law laid down in the case of V. Subu
Lakshmi and Ors. v. V. Lakshmi 2008 ACJ 936 SC recorded that the
claimants did not produce any corroborated evidence on record to show that
the deceased had started his own business.
8. In the affidavit Ex.PW1/A, wife of the deceased has not disclosed as
to what business had been started by the deceased after his retrenchment
from the Company. In the affidavit it is nowhere mentioned as to how
much amount had been earned by the deceased from the business during
February, 2005 to November, 2005. However, Ld. Tribunal further recorded
that merely because the deceased had been retrenched from the private job, it
does not mean that he was not earning or was not capable to earn. Ex.P1 is
the Income Tax Return filed by the deceased himself. Moreover, the
claimants have examined Sh. Pavitar Kumar, PW4, an Assistant, who
proved the fact that the deceased had been in their employment and was
getting a salary of Rs.12,500/- per month. Ex.P1 proves the fact that the
deceased was getting Rs.89,025/- as salary per annum. Accordingly,
keeping the ITR filed by the claimants into view, Ld. Tribunal has assessed
the income of the deceased as Rs.7,418.75/- per month.
9. It is an admitted fact that the deceased was not in an employment at
the time of accident. However, he was a healthy and hearty man. He was
not a disabled person. He was law abiding citizen as he used to file Income
Tax Return. He worked with S. Trading Engineers Service. Therefore,
because of his experience in the said Establishment, he would have been in
gainful employment.
10. As the issue of future prospects is concerned, this issue came before
this court in the case bearing MACA No.846/2011 titled as 'ICICI Lombard
Channel Insurance Co. Ltd. Vs. Angrej Singh & Ors.,' decided on
30.09.2013. While relying upon the dictum of Rajesh and Ors. Vs. Rajbir
Singh and Ors. 2013 (6) SCALE 563, this court has added future prospects
even in a case, where the deceased was not in a permanent job. Therefore,
keeping in view the dictum of Rajesh & Ors. (Supra) and the view taken by
this court in the case of Angrez Singh & Ors. (Supra), I do not find any
merit on this issue and dismiss the same.
11. Accordingly, the instant appeal stands dismissed.
12. The statutory amount be released in favour of the appellant.
13. The balance compensation amount be released in favour of the
respondents / claimants on taking steps by them.
SURESH KAIT, J.
FEBRUARY 12, 2014
jg
