United India Insurance Co Ltd vs Babita Kanodia & Ors
2014 Latest Caselaw 5090 Del

$~A-14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision 13.10.2014

+     MAC.APP. 308/2012 and CM No.7498/2012

      UNITED INDIA INSURANCE CO LTD         ..... Appellant
                    Through Mr.S.K.Ray, Advocate.

                        versus

      BABITA KANODIA & ORS                   ..... Respondents
                   Through  Ms.Gunjan Bansal, Advocate for
                            Mrs.Avnish Ahlawat, Advocate for
                            R-6/DTC.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed seeking to impugn the Award dated 05.12.2011 by the appellant Insurance Company.

2. The brief facts are that on 04.08.2010, the deceased Manick Chand Kanodia along with his wife Babita Kanodia/respondent No.1 were going from Maharani Bagh to Badarpur on a motorcycle. Opposite River Valley School, Kalindi Kunj Road, New Delhi their vehicle was hit by a DTC bus said to be driven by respondent No.5 in a rash and negligent manner. The deceased and respondent No.1 fell down and were shifted to hospital. The deceased died on the same date.

3. Based on the evidence on record, the Tribunal granted total compensation of Rs.46,04,165/- as follows:-

      Loss of dependency                           : Rs.44,79,165/-




       Funeral Expenses                                : Rs. 25,000/-
      Love and Affection                              : Rs. 75,000/-
      Loss of Consortium                              : Rs. 75,000/-
      Total                                        : Rs. 46,54,165/-
      Less Interim Award                              : Rs. 50,000/-
      Balance Payable Sum                          : Rs. 46,04,165/-

4. Learned counsel appearing for the appellant has made three submissions. He submits that the assessment of loss of dependency based on the income of the appellant is erroneous as the income has been wrongly computed. He submits that as per the IT Return for the assessment year 2009-2010, the deceased was shown to have an income of Rs.3,31,790/-. He further submits that this Return filed on 20.01.2010 pertains to the years 2009-2010 whereas the accident took place on 04.08.2010. Hence, he submits that there is a gap of two years after filing of this return before the deceased expired. Further, he submits that there is only one return filed on record. Based on this submission, he submits that the Tribunal has wrongly accepted the income of the deceased as Rs.3,31,790/- based on this IT Return for the purpose of computation of loss of dependency. He secondly submits that future prospects have been added @ 50% and the income has been enhanced. He states that future prospects should only be added to the income of Rs.1,20,000/- at best and not on the full income which was of Rs.3,31,790/- which includes commission of Rs.2,11,530/-. He lastly submits that the accident took place due to the contributory negligence of the deceased and the driver of the DTC bus respondent No.5.

5. While computing loss of dependency, the Tribunal has noted that as per the income tax return Ex.PW-1/1 the deceased had an income of Rs.3,31,790/- of which he has paid Rs.12,807/- as income tax. The Tribunal

concluded that the business was actually being run by the wife/respondent No.1 in the name of Ishana Export; that she was the person who was educationally qualified as a fashion designer and was competent to run the business. Hence, the Tribunal concluded that the deceased was a commission agent and could be considered as a freelancer or as an earning professional.

6. The Tribunal further held that in view of the evidence on record, respondent No.1 was not dependent on the income of the deceased and she would be entitled to loss of estate which would be 30% of the income of the deceased. The Tribunal also noted that the deceased had left a four year old minor daughter and two old aged parents who would be dependent on him as there was nothing to show that the parents had their own independent source of income and were living separately and managing their own affairs. Having regard to these facts, the Tribunal did a lump sum deduction of 40% amounting to Rs.1,32,716/- from the income as shown in the IT Return i.e. Rs.3,31,790/-. The income for the purpose of computing loss of dependency was taken as Rs.1,99,074/- and enhanced by 50% for future prospects. Accordingly, loss of dependency was calculated at Rs.44,79,165/-.

7. A perusal of the income tax return filed by the deceased for the assessment year 2009-10 Ex.PW-1/1 shows gross total income of Rs.3,31,790/-. There is nothing in Ex.PW-1/1 which gives break-up of the income as is sought to be argued by the learned counsel for the appellant, namely, that the income is only Rs.1,20,000/- and the balance is the commission. Similarly, respondent No.1 in her cross-examination placed on record the balance sheet of her firm Ishana Exports as on 31.03.2009. This balance sheet shows gross profit of Rs.15,01,559/- with export sales being to

the tune of 1,05,76,229/-.

8. Hence there is nothing on record to substantiate the submissions of the learned counsel for the appellant that the deceased was receiving income which was partly income and partly commission. The IT return Ex.PW-1/1 does not reflect this. I also cannot help noticing that the balance sheet of the wife of the deceased respondent No.1-proprietor of Ishana Exports shows that she had a highly lucrative business. There is no reason to believe that the deceased would not have been earning income as shown in the income tax return. I am not inclined to differ with the conclusion in the Award merely because the income tax return for one year has been placed on record.

9. Coming to the second submission of future prospects having been granted on commission amount also. As already held the bifurcation of income as proposed by the appellant is misconceived. Even otherwise the Tribunal while calculating loss of dependency has already reduced 40% from the assessed income in view of the fact that respondent No.1 was not financially dependent upon the deceased. Hence there is no merit in the first two submissions of the appellant pertaining to computation of loss of dependency.

10. Coming to the issue of contributory negligence. The Tribunal noted that the motorcycle of the deceased was hit by the DTC bus which was running at a fast speed. Respondent No.1/PW-1 was present on the motorcycle when the accident took place. She has deposed in her affidavit by way of evidence that the offending bus was driven at a very high speed, rashly and negligently and hit the motorcycle from behind. She has not been cross-examined on this aspect. The driver of the offending vehicle has been

prosecuted under Sections 279/337/304-A IPC. The Tribunal did not accept the version of the driver RW1/1. The Tribunal also relied upon the judgment of this court in the case of National Insurance Company Ltd. vs. Pushpa Rana, 2009 ACJ 289 where this court has already held that based on the certified copies of the trial of the criminal court including chargesheet, FIR and other connected record, it is normally possible to conclude about rash and negligent driving of the driver of the offending vehicle based on these documents. I see no reason to interfere with the findings of the Tribunal on this count.

11. There is no merit in the appeal. The same is dismissed.

12. As per the interim order passed by this court on 23.03.2012, the entire award amount was directed to be deposited in court to be kept in a fixed deposit. A sum of Rs.5,00,000/- was directed to be released on 13.07.2012 to the claimants. Balance award amount is lying deposited in this court with accumulated interest be released to the claimants proportionately as per the directions in the award.

13. The statutory amount if deposited by the appellant at the time of filing of the appeal be refunded to the appellant.

JAYANT NATH, J OCTOBER 13, 2014 rb