Oriental Insurance Co Ltd vs Sunita & Ors
2014 Latest Caselaw 5783 Del

$~7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Date of decision:13.11.2014
+     MAC.APP. 627/2012
      ORIENTAL INSURANCE CO LTD       ..... Appellant
                       Through: Mr.Pradeep Gaur, Advocate
               versus
      SUNITA & ORS                    ..... Respondents
                       Through: Ms.Veena Goswami, Advocate
                                for Respondents No.1 to 3.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present appeal, the appellant seeks to impugn the Award dated 10.04.2012.

2. The brief facts which led to the filing of the claim petition are that on 14.01.2007 the deceased Shri Suresh Kumar along with his wife and son respondents No.1 and respondent No.3 respectively were travelling on a motorcycle. They had gone to Village Katlupur, Nahri. They were returning from Suresh Kumar's sister's place after giving gift of Sakrant at Lampur village near the bus stand. They were hit by a truck driven by respondent No.4 in a high speed, rashly and negligently. All the riders fell down. Unfortunately, the deceased fell in front of the wheel of the truck and the truck dragged him for 15-20 feet. The deceased died on the spot.

3. Based on the evidence on record, the Tribunal had awarded the following compensation:-

"Pecuniary Damages

a) Funeral charges =============== Rs. 10,000/-

b) Loss of consortium =============Rs. 10,000/-

c) Loss of dependency ============Rs.34,56,000/- Non Pecuniary Damages

a) Loss of love and affection etc. =====Rs. 75,000/-

b) Loss of Estate ================Rs. 30,000/-

-------------------------

Total Rs.35,81,000/-"

4. Learned counsel appearing for the appellant has impugned the compensation awarded by submitting that the Tribunal has wrongly assessed the income of the deceased at Rs.18,000/- per month. He points out that the Tribunal has accepted the contention of the claimants that the deceased was purchasing about 150 ltrs. of milk everyday and selling it and earning Rs.3.50 to Rs.4 per ltr. He submits that there is no proof of the same. The deceased was not paying income tax. He has not placed any bank statement on record. The evidence submitted is very cursory and cannot be relied upon by the Tribunal.

5. A perusal of the award shows that the Tribunal has noted the evidence of PW1, namely, respondent No.1 and the brother-in-law of the deceased PW4. Both have stated in their evidence that the deceased was earning Rs.22,500/- per month by sale of 150 ltrs. of milk per day. The Tribunal noted the evidence of said witness who has said that he was buying milk from people of nearby villages and selling the same to different people in Delhi. The Tribunal notes 5 diaries Ex.PW1/2 regarding sale of milk, 5 Purchase Register for the period 1.1.2006 to 15.9.2006 & Ex.PW1/4 showing purchase of milk have been placed on record. The Tribunal notes

that the respondents have not disputed the evidence of PW1 and PW4. Even no question/suggestion was put to rebut that the deceased was not purchasing 150 ltrs. of milk everyday and thereafter selling the same and earning Rs.3.50 to Rs.4 per ltr per day. Hence, the Tribunal accepted that the deceased was earning Rs.18,000/- per month. Loss of dependency was assessed at Rs.34,56,000/-.

6. However, a perusal of cross examination of PW1 would show that the Tribunal has erred in concluding that there is no proper cross examination of PW1 about the income of the deceased. The relevant portion of the cross examination of PW1, as done by counsel for the insurance company, reads as follows:-

"It is wrong to suggest that my husband was not earning Rs.22,500/- per month. My husband was earning Rs.16,000/- to Rs.17,000/- per annum (should read per month). Today I do not have any income from the agriculture land as my husband is not there to get the things done. Presently the agriculture land I have given to other persons for cultivation. At present I am receiving Rs.20,000/- to Rs.25,000/- per kila per annum."

Ït is wrong to suggest that my husband was not collected daily milk about 150 per ltr per day and not saving Rs.3.50P to Rs.4 per ltr. It is wrong to suggest that my husband was not contributing Rs.18,000/- per month on an average. It is further wrong to suggest that in annual income of my husband was not Rs.2,70,000/- per month (presumably per annum) from the said milk business and agriculture land. It is wrong to suggest that I am deposing falsely."

7. Similarly, PW 4 was also cross examined by the insurance company.

The relevant portion of his cross examination reads as follows:-

Ït is wrong to suggest that the deceased was not earning Rs.600/- per day and was not selling 150 ltrs. of milk per day as alleged in my affidavit."

8. It is, hence, clear that the Tribunal has erred in accepting the income at Rs.18,000/- per month on the plea that the evidence of PW1 and PW4 has not been challenged.

I may also note that PW1 in her affidavit by way of evidence states as follows:-

"(c) That at the time of demise the deceased Sh. Suresh Kumar was about 31 years old enjoying excellent health and was working as a Distributor of Milk since the year 1996 besides agriculture.

That daily collection and distribution of milk by deceased was about 150 Ltr per day on an average which included the collect of milk to the tune of 80 Ltr in the morning and 70 Ltr in the evening and each Ltr. Saved Rs.3.50/ to Rs.4/- per day for the deceased Sh. Suresh Kumar. As such Suresh Kumar's income from the said distribution of milk was Rs.600/- per day which contributed to Rs.18,000/- per month on an average. The deceased Sh. Suresh Kumar had maintained register regularly for his collection of milk. Some of the details of different dates along with photocopy of the register are exhibit P W.1/7 (colly) (Original seen and returned)"

9. She further states that in her cross examination that her husband was not maintaining any cash book or ledger etc. She states that he was having a bank account in UCO Bank, Sambhalka, Panipat, Haryana. But she does not have an account number. She confirms that her husband was not paying

income tax. She confirms that she does not have any other document to show the income of the deceased husband except the documents which have already produced and exhibited.

10. PW4 Shri Raj Kumar, brother-in-law of the deceased, in his evidence, reiterates that the deceased was earning Rs.600/- per day on the sale of 150 ltrs. of milk everyday.

11. A perusal of the diaries and the register shows some details and figures mentioned against various names. However, it is very difficult to comprehend as to how much has been bought from them and how much milk was sold to whom.

12. In my opinion, if the deceased was earning so much as is claimed he should have been running a bank account and paying income tax. That apart, the evidence would have been placed on record to show the details of the persons from whom milk was procured and the persons from whom the milk was sold. 150 ltrs. of milk a day is a considerable quantity. It would have been procured from 4-5 different sources or more and would have been sold to numerous sources if supplied to retail consumers at home. In case, it is supplied to commercial establishments, the particulars of such establishment would have been known to PW1 or PW4. The evidence is completely bereft of details which would inspire confidence.

13. In the light of the above evidence, the income assessed by the Tribunal at Rs.18,000/- per month is on the higher side. I assess the income of the deceased at Rs.13,500/- per month. The loss of dependency would now be (13,500 + 50% - 1/3) x 16 x 12 i.e. Rs.25,92,000/-.

14. The total compensation would now read as follows:-

"Pecuniary Damages

a) Funeral charges =============== Rs.10,000/-

b) Loss of consortium =============Rs. 10,000/-

c) Loss of dependency ============Rs.25,92,000/- Non Pecuniary Damages

a) Loss of love and affection etc. =====Rs.75,000/-

b) Loss of Estate ================Rs. 30,000/-

-------------------------

Total Rs.27,17,000/-

15. As per the interim order dated 30.5.2012, the award amount less Rs.75,000/- (towards lawyers fee) was directed to be deposited. On 23.11.2012, it was directed that a sum of Rs.2.50 lacs shall be released in favour of first respondent. The Registrar General may release the entire amount as per direction in this order along with accumulated proportionate interest. The balance amount with proportionate interest be released to the appellant.

16. The statutory amount, if any paid by the appellant company at the time of filing of the appeal be refunded to the appellant.

17. The appeal stands disposed of.

JAYANT NATH, J NOVEMBER 13, 2014 ks