Oriental Insurance Co Ltd vs Shweta Khan & Ors
2014 Latest Caselaw 5996 Del

$~A-8
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision20.11.2014

+     MAC.APP. 182/2012

      ORIENTAL INSURANCE CO LTD        ..... Appellant
                   Through  Mr.A.K.Soni, Advocate.

                         Versus

      SHWETA KHAN & ORS                         ..... Respondents
                  Through             Mr.O.P.Mannie, Advocate for R-4 &
                                      5.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant Insurance Company seeking to impugn the award dated 19.12.2011.

2. The brief facts which gave rise to filing of the claim petition and the present appeal are that on 10.08.2007 the deceased Inam Khan was going on his motorcycle towards Delhi from Noida. He was hit by a truck driven by respondent No.2 in a rash and negligent manner at a very high speed.

3. Based on the evidence on record the Tribunal granted the following compensation:-

       Loss of financial dependency          Rs.20,17,500/-
       Loss of future prospects                         Nil
       Loss of love and affection               Rs.10,000/-
       Loss of consortium                       Rs.10,000/-
       Funeral Expenses                          Rs.5,000/-




        Loss of Estate                            Rs.10,000/-
       Total                                  Rs.20,52,500/-

4. Learned counsel appearing for the appellant submits that the compensation of Rs.20,52,500/- is excessive. He submits that the Tribunal has assessed the income of the deceased based on the last ITR for the assessment year 2007-2008 which was for Rs.1,93,200/- less Rs.15,400/- equivalent to Rs.1,77,800/-. He submits that this ITR was filed after the death of the deceased inasmuch as the ITR was filed on 14.09.2007. He further submits that as per the statement of the employer PW-2-Mr.Amit Verma, the deceased was being paid by way of cheque of Rs.10,000/- per month. Hence, he submits that that would be the right figure to assess the income. He further submits that the Tribunal has wrongly not granted recovery rights and that the offending vehicle was being driven without a valid permit. He states that notices under Order 12 Rule 8 CPC were served on the owner of the offending vehicle but a copy of the permit was not provided. The owner has not appeared before the Tribunal or before this court and no permit was also filed.

5. Coming to the issue of quantum of compensation, a perusal of the award shows that the Tribunal assessed the income of the deceased based on the income tax record. The Tribunal noted the evidence of PW-1 and PW-2 and assessed the income at Rs.1,78,000/- per annum. As the deceased was 29 years old at the time of the accident, a multiplier of 17 was taken. 1/3 rd was deducted towards personal expenses as apart from the claimant, the deceased was survived by the widow that the dependent parents.

6. I may look at the evidence on record. PW-1 Ms.Shweta Khan in her

evidence has said that her deceased husband was working with New Delhi Communication, an authorised Airtel Franchise situated in GK Part II, and was drawing a salary of Rs. 20,000/- per month. She has also placed on record the original PAN card, original passport and original passbooks of the deceased of Bank of Punjab Ltd., Centurian Bank and other documents. In her cross-examination she has denied the suggestion that her husband was not earning Rs. 20,000/- per month. She confirms that the income tax return was filed after the death of her husband. She submits that the employer was paying her husband Rs.9,000/- by way of cheque and Rs.9,000/- by way of cash and Rs.2,000/- as mobile expense. She confirms that she has no document to prove that her husband was receiving Rs.9,000/- in cash. She confirms that she has re-married on 08.04.2009.

7. PW-2 Sh. Amit Verma has stated that the deceased was his employee working as a Business Development Manager. The salary certificate has been marked as Ex.PW2/1. The salary certificate shows that the deceased was getting a salary of Rs. 20,000/- per month. In cross-examination, he submits that he was paying Rs.10,000/- by way of cheque and Rs.10,000/- by cash. He submits that he is regularly maintaining books of accounts and filed income tax returns. He also confirms that the deceased was an MCA and professionally fit person. He also states that 4 to 5 persons were working with him at that time and presently 8 persons are working with him.

8. Some of the documents filed by him, namely, Ex.PW-2/2 shows that Rs. 10,000/- had been paid by way of cheque to the deceased. A perusal of his qualification certificates shows that he had first division throughout.

9. In the light of the evidence on record, in my opinion, there is no error in the findings of the Tribunal in assessing the income based on the income

tax return filed. It is true that the return was filed after the death of the deceased but one cannot ignore the evidence of PW-2 who has categorically stated that he had been paying Rs. 20,000/- per month. The deceased was a well qualified person being first class in school and colleges. He has completed Master of Computer Application course. Relevant documents like his passbooks have also been on record. His original passport is on record which shows that he travelled Mauritius for 3 to 4 days in June 2007.

10. Further the income of the deceased as reflected in the evidence of PW-2 matches with the income tax return which had been filed. I see no reason to differ with the award of this finding of the income of the deceased.

11. As far as recovery rights are concerned, the owner of the offending vehicle, namely, respondent No.3 did not appear before the Tribunal. In fact no written statement was filed on his behalf. He has also not appeared before this court.

12. R3W1-Sh.Hukumat Rai, Deputy Manager of the appellant Insurance Company confirms that a legal notice under Order 12 R 8 CPC was sent to the owner which has been marked as Ex.R3W1/A. Postal receipts and AD cards have been placed on record as Ex. R3W1/B, Ex.R3W1/C and Ex.R3W1/D.

13. Keeping view of the above facts, respondent No.3 has failed to prove the permit. Accordingly, there is clear breach of the terms of the Insurance Policy. The appellant Insurance Company is given recovery rights against respondent No.3.

14. With the above observations, the appeal stands disposed of.

15. All interim orders stand vacated.

16. Statutory amount, if any, be refunded to the appellant Insurance Company.

MAC APP........./2014

17. These are cross-objections.

18. Let these cross-objections be numbered as a separate appeal.

19. Learned counsel appearing for the claimants submits that while having assessed the income based on the ITR at Rs.1,77,800/- the Tribunal has not enhanced the same on account of future prospects. Keeping in view the various judgments of the Supreme Court, he further submits that non- pecuniary damages have been given at a much lower side. Lastly he submits that the Tribunal for the purposes of calculation of loss of dependency has deducted 1/3rd on account of personal expenses of the deceased whereas he submits that the deduction should have been 1/4 th as the deceased was survived by apart from the widow, two parents and three unmarried dependent sisters one of whom is mentally challenged.

20. As far as future prospects are concerned, this court has by following several judgments of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54, V. Mekala vs. M. Malathi & Anr 2014 ACJ 1441 and Smt. Savita vs. Bindar Singh & Ors. (2014) 4 SCC 505 has been awarding future prospects. Accordingly, for purposes of computing loss of dependency, the salary of the deceased is increased by 50% keeping in view the fact that the deceased was 29 years old at the time of the accident. Hence, loss of dependency would now come to Rs.30,41,130/- [(Rs.1,78,000/- + 50%) -1/3 x 17].

21. On non-pecuniary damages, as far as the award of compensation on

account of loss of consortium of Rs.10,000/-, I do not propose to increase the same as the widow has remained and is settled abroad. The Tribunal awarded Rs. 10,000/- for loss of love and affection. I enhance this amount from Rs.10,000/- to Rs.50,000/-.

22. Coming to the issue of deduction, the parents of the deceased, namely, respondents No. 4 and 5 did not enter the witness box only respondent No.1 the widow has given evidence. In the absence of any evidence of the parents or any other witness, it is not really possible to conclude that the parents and the sisters were financially dependent upon the deceased. I see no reason to interfere in the award whereby 1/3rd has been deducted on account of personal expenses.

23. Total compensation would now to Rs.31,16,130/- as follows:-

       Loss of financial dependency      Rs.30,41,130/-
       and Loss of future prospects
       Loss of love and affection            Rs.50,000/-
       Loss of consortium                    Rs.10,000/-
       Funeral Expenses                       Rs.5,000/-
       Loss of Estate                        Rs.10,000/-
       Total                             Rs. 31,16,130/-

24. Insurance company may deposit the enhanced compensation amount with interest @ 7.5% per annum from the date of filing of claim petition till deposit before the Registrar General of this court within six weeks. The entire enhanced compensation shall be released in equal proportion to respondent no.1 i.e. parents of the deceased.

25. At this stage, learned counsel appearing for the claimants submits that respondent No.4 & 5, the mother of the deceased is suffering from cancer and her entire compensation amount be released. Accordingly let 50% of the

share of the enhanced compensation amount of respondent No. 4 be released to respondent No.4. As far as the share of respondent No.5 is concerned, 50% of his share of the enhanced compensation shall be released to him and the balance 50% of the enhanced compensation amount will be kept in a fixed deposit for a period of three years before UCO Bank, Delhi High Court Branch. The said respondent No.5 shall be entitled to interest at quarterly rests.

26. The appeal stands disposed of.

JAYANT NATH, J NOVEMBER 20, 2014/rb