The New India Assurance Co Ltd. vs Smt. Shweta & Ors.
2014 Latest Caselaw 2957 Del

$~30
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on: 4th July, 2014

+                                 MAC.APP. 549/2014


THE NEW INDIA ASSURANCE CO LTD.                    ..... Appellant
                  Represented by: Mr.J.P.N.Shahi, Advocate.

                           Versus

SMT. SHWETA & ORS.                                          ..... Respondents
                           Represented by:   None.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

CM No.10419/2014 (for exemption)

Exemptions allowed, subject to all just exceptions.

The application stands disposed of.

MAC.APP. 549/2014

1. Vide the present appeal, the appellant/Insurance Company has

assailed the impugned award dated 10.05.2014, whereby the learned

Tribunal has awarded compensation for a sum of Rs.17,94,000/- with

interest at the rate of 7.5% per annum from the date of filing of the claim

petition till realization of the amount.

2. Mr.Shahi, learned counsel appearing on behalf of the

appellant/Insurance Company submits that the deceased was driving the

vehicle himself when he met with the accident with offending vehicle.

Despite, the learned Tribunal failed to assess the contributory negligence on

the part of the deceased.

3. Learned counsel has fairly conceded that the appellant/Insurance

Company did not led any evidence to prove that the deceased was negligent

in causing the accident in any manner.

4. In view of the statement made by the learned counsel for the

appellant/Insurance Company, I find no merit on this issue.

5. Learned counsel further argued that age of the deceased was 26 years

on the date of the accident, i.e., 25.10.2007. Though the claimants could not

prove that the deceased was in permanent employment, despite the learned

Tribunal has added 50% of the income of the deceased in his actual income

towards future prospects, which is contrary to the settled law in the case of

Sarla Verma & Ors. Vs. DTC & Anr., (2009) 6 SCC 121, which has been

further affirmed by the Full Bench of the Apex Court in the case of Reshma

Kumari & Ors. Vs. Madan Mohan & Anr., delivered in Civil Appeal No.

4646 of 2009 on 02.04.2013.

6. So far as the issue of future prospects is concerned, the same has been

dealt with by this Court in the case bearing MAC. APP. No.846/2011 titled

as ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors.,

decided on 30.09.2013, wherein held as under:-

"22. The Apex Court in Rajesh has discussed the issue regarding the assessment of future prospects; and has also come to a specific conclusion that the self-employed or persons with fixed wages are entitled for future prospects. The Apex Court succinctly specified the reasons for the same considering the socio-economic changes in the society. It also made thrust on the age of the deceased as one of the factors for computing the future prospects.

23. I note, the Apex Court in Santosh Devi noted the finding in Sarla Verma; and canvassed a different reasoning regarding the assessment of future prospects: one of the factors in the multiplicand.

24. The Apex Court in Santosh Devi, did not refer the matter to a Larger Bench, whereas it followed all the principles formulated in Sarla Verma except the finding in respect of the assessment of future prospects for the persons falling under the category of self- employment / fixed wages.

25. It is legally significant to note the dictum laid down by the Constitution Bench of Apex Court in Central Board of Dawoodi Bohra Community and Anr. (Supra). The Apex Court held as under:

"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted."

26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi.

27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self-employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."

7. Therefore, keeping in mind the view taken by this Court in the case of

Angrej Singh & Ors. (supra) while relying upon the dictum of the Supreme

Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6)

SCALE 563) and the age of the deceased, i.e., 26 years at the time of

accident, I do not find any merit in the submissions of the learned counsel on

the issue of adding 50% future prospects in the actual income of the

deceased.

8. Admittedly, the deceased was 26 years of age at the time of the

accident. He was earning Rs.98,468/- per annum, which has been proved

by the Income Tax Return ('ITR') for the assessment year 2005-06,

Ex.PW3/2 (colly.).

9. Shri Devender Kumar, Inspector, Income Tax Office, Ward No.2(3),

near Shankar Chowk, Gurgaon, Haryana, appeared as PW3 and proved the

ITR filed by the deceased for the assessment year 2005-06 as Ex.PW3/2. He

specifically stated that as per the computer record, deceased Shri Sanjeev

Raghav had not filed ITRs for the assessment year 2006-07 onwards.

10. The accident had taken place on 25.10.2007. The ITR available on

record was for the assessment year 2005-06, which had been proved by

PW3. The same shows annual income of the deceased to be Rs.98,468/- on

which an income tax of Rs.8,694/- was payable. Since rebate was

admissible in respect of the same, therefore, the learned Tribunal has

assessed the annual income of the deceased as Rs.98,468/-.

11. Learned counsel for the appellant/Insurance Company has raised the

issue that ITR of one year cannot be considered for assessing the income of

the deceased.

12. I do not find any merit in the submission made by learned counsel for

the reason that the accident had taken place on 25.10.2007. Obviously there

was no ITR thereafter. Before that, ITR pertaining to the assessment year

2005-06, Ex.PW3/2 is on record. Moreover, on the issue of any other ITR

being filed by the deceased for the previous years, the Insurance Company

failed to ask any witness to produce the same.

13. In such an eventuality, there was no embargo upon the learned

Tribunal to assess the income of the deceased as per the record available.

14. As learned counsel has argued that the compensation granted by the

learned Tribunal towards non-pecuniary damages is on higher side.

15. I note, the deceased was aged 26 years on the date of the accident. He

was maintaining the family consisting of a young widow, a minor son and an

aged mother. Due to his sudden accidental death, his young widow lost the

association of her husband and enjoyment of life, minor son lost the love,

affection, care and guidance of his father and mother lost the love, affection

and support of her young son in her old age.

16. Therefore, keeping in view the facts and circumstances of the case, I

am not inclined to interfere with the compensation amount granted by the

learned Tribunal towards non-pecuniary damages.

17. Hence, finding no merits in the appeal, the same is dismissed in

limine.

18. Consequently, the Registry of this Court is directed to release the

statutory amount in favour of the appellant/Insurance Company and the

compensation with upto date interest in favour of the respondents/claimants

in terms of the award dated 09.05.2014 passed by the learned Tribunal on

taking necessary steps by them.

CM.No10418/2014 (for stay)

With the dismissal of the appeal itself, the instant application has

become infructuous. The same is accordingly dismissed.

SURESH KAIT, J.

JULY 04, 2014 sb