Seema Jhamb & Ors vs Icici Lombard General Insurance ...
2014 Latest Caselaw 4163 Del

$~A-33& 34
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of decision: 04.09.2014
+     MAC.APP. 508/2009
      SEEMA JHAMB & ORS                    ..... Appellant
                       Through Mr.Navneet Goyal, Advocate
                versus
      ICICI LOMBARD GENERAL INSURANCE CIO
      LTD`                                 ..... Respondent
                       Through Mr.Pankaj Seth, Advocate for R-1/
                               ICICI Lombard General Insurance
                               Company
                               Mr.Pradeep Gaur, Advocate for
                               R-4/Oriental Insurance Co.Ltd.

+     MAC.APP. 195/2010
      ORIENTAL INSURANCE CO LTD                 ..... Appellant
                      Through Mr.Pradeep Gaur, Advocate
               versus
      SEEMA JHAMB & ORS                         ..... Respondent
                      Through Mr.Navneet Goyal, Advocate for R-1
                              to R-3
                              Mr.Pankaj Seth, Advocate for ICICI
                              Lombard General Insurance
                              Company/R-4
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH


JAYANT NATH, J. (ORAL)

1. MAC Appeal. No. 508/2009 is filed by the claimants seeking enhancement of the amount awarded pursuant to a claim petition filed by them by the Tribunal. MAC App. No. 195/2010 is filed by the Oriental Insurance Company Ltd. claiming that the vehicle insured by them, namely, the truck is not in any way responsible or liable for the accident that took place with the bus and that the insurer of the bus ICICI Lombard General

Insurance Company Ltd. is fully liable for the liability.

2. The brief facts are that the deceased Sh. Dharampal Jhamb was travelling in a Haryana Roadways bus which was going from Delhi to Dharamshala, H.P on 02.07.2006. When the bus reached near Ropar, Punjab, it collided with a truck which was parked on the main road. Due to the collusion between the bus and the truck, the passengers sitting in the bus sustained injuries. Some of the passengers sitting in the bus died including Dharampal Jhamb.

3. Based on the evidence of the parties, the Tribunal relying upon the challan under Section 173 Cr.P.C. filed pursuant to the investigation carried out by the police, and the statement of Sh.Daler Singh made to the police who was an eye witness to the case and based on whose statement the FIR was registered, concluded that it was a case of composite negligence of both the vehicles.

4. On compensation the Tribunal awarded the following amount:-

       Loss of financial dependency              Rs.8,88,240/-
       Loss of love and affection                Rs.10,000/-
       Loss of consortium                        Rs.50,000/-
       Funeral Expenses                          Rs.5,000/-
       Loss of Estate                            Rs.5,000/-
       Total                                     Rs.9,58,240/-

5. As it was a case of composite negligence, the Tribunal held that the driver and the owner of the two respective vehicles and the two respective insurance companies are jointly and severally liable. The two insurance companies, namely, ICICI Lombard General Insurance Company Ltd. and the Oriental Insurance Company Ltd. were directed to share the liability in the ratio of 50%.

MAC.APP. 195/2010

6. This appeal is filed by the insurer of the truck, namely, Oriental Insurance Company Ltd. stating that there is no negligence on the part of the truck and the entire liability should be borne by the insurer of the offending bus i.e. ICICI Lombard General Insurance Company.

7. Learned counsel appearing for the appellant Insurance Company submits that the Tribunal completely ignored the evidence of the eye witness PW-2 Sh.Rajinder Kumar who stated that the bus was driven by the driver at a very fast speed of more than 100 kmph. He submits that the Tribunal has completely ignored this evidence and relying solely on the charge-sheet held it to be a case of composite negligence. Hence, he seeks modification of the Award with a direction that the truck was not responsible for the accident and consequently the appellant/Insurance Company are not liable, for any portion of the compensation.

8. Reference may be had to the statement of Sh.Daler Singh, who was the eye witness and which statement was made before the police and is marked as.Ex.P-11. In the statement he has confirmed that he was also on the bus in question. He has confirmed that the driver was driving the bus in a rash and negligent manner. He has also said that the accident took place at around 4.40 am. He has said that "the bus hit a truck/trolley which was parked on the road in a wrong way without any indication." The Truck/Trolley was a 14 tyre vehicle. He has repeated that the truck/trolley was parked by the driver on the road in a wrong manner without any indication.

9. The FIR is based on the above statement of Sh.Daler Singh and repeats the said statement.

10. It is true that the Tribunal while concluding about composite negligence of the two vehicles has not taken note of the evidence of PW-2.

PW-2 Rajinder Kumar has stated that he was a passenger of the bus and has filed a claim petition at the court at Dharmashala. He states that the bus was driven at a very fast speed of more than 100 kmph. He further states that the bus hit the stationary truck.

11. The accident has taken place early in the morning at 4.40 a.m. It was obviously dark at that time. The evidence show that the truck which was a 14 tyre vehicle, had been parked on the road in an improper manner. The evidence also shows that the bus was also being driven at a very high speed. The composite negligence of the two vehicles is apparent on the face of the record. There are no grounds made out to in any way differ with the findings recorded by the Tribunal.

12. The appeal MAC. APP 195/2010 is dismissed.

13. The statutory amount, if any, may be refunded to the appellant. MAC.APP.508/2009

14. This appeal is filed by the claimants. The learned counsel appearing for the claimants submits that the compensation awarded has been wrongly assessed by the Tribunal. Stress is laid on the calculation of the loss of dependency which the counsel submits is entirely erroneous. He firstly submits that the IT Returns for the two years, namely, for the assessment year 2005-06 Ex.P-23 for the annual income of Rs.1,47,756/- and the IT returns for the assessment year 2006-07 for the annual income of Rs.2,05,668/- being Ex.P-24 of the deceased were placed on record before the Tribunal. He submits that the Tribunal has completely ignored Ex.P-24 and has taken the salary of the deceased based on Ex.P-23 only and pegged the annual salary at Rs.1,47,756/- less Rs.10,720/- being the income tax paid which comes to Rs.1,36,829/-. Learned counsel for the appellants submits that as per Ex.P-24 which was the last income tax return filed on behalf of

the deceased his annual income was Rs.2,05,668/- and that the same was the correct salary to be taken by the Tribunal for assessing loss of dependency.

15. He secondly submits that the deceased was 40 years of age. The Tribunal has not added any amount on account of future prospects. He submits that at least 30% increase in the assessed income should have been made before computing loss of dependency.

16. Thirdly, learned counsel submits that the Tribunal has while computing loss of dependency wrongly made deductions towards personal expenses of the deceased twice. At one place Rs.4,000/- has been deducted for the personal expenses and thereafter relying on the judgment of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 of the Supreme Court, again 1/3rd has been deducted towards personal expenses.

17. I will first deal with the contention relating to the assessed income of the deceased. A perusal of the evidence of PW-1 shows that she has actually exhibited the last three IT returns of the deceased, namely, Ex.P-22 to Ex.P-

24. Ex.P-22 is the IT returns for the assessment year 2004-2005 which shows annual income of Rs.1,49,546/- and Ex.P-23 is the IT returns for the assessment year 2005-2006 which shows annual income of Rs.1,47,756/- whereas Ex.P-24 is the IT returns for the assessment year 2006-2007 which shows annual income of Rs.2,05,668/-.

18. A perusal of the Award shows that the Tribunal has taken the income as Rs.1,47,756/- of the deceased which is the annual income for the assessment year 2005-2006 shown in Ex.P-23. The basis for only taking the income based on one IT return and ignoring the other two IT returns is not stated in the Award.

19. In my opinion, it would be appropriate to take an average of the three returns filed by the deceased. The average income based on the three returns comes to Rs. 1,67,657/-. The average income tax paid comes to Rs. 10,720/-. Hence, the net average salary of the deceased for the last three years prior to his death comes to Rs.1,56,937-. This would be the appropriate salary for purposes of computing the loss of dependency.

20. Coming now to the second submission of the learned counsel for the appellants regarding future prospects.

21. I can take judicial note of the fact that minimum wages for a graduate in 2002 were Rs.3,427.4 P.M. and in 2012 were Rs.9,282/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.

22. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 the Supreme Court held that in the case of self employed or those on fixed wages, when the victim is between the age group of 40-50, income should be increased by 30% for future income/future rise.

23. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505, the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the Supreme Court in the case of a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.

24. In view of the above legal position, the salary of the deceased would be liable to be increased by 30% on account of future prospects/rise in prices. The deceased was aged 40 years.

25. Regarding the third submission of learned counsel for the claimant, the learned counsel appearing for the insurance company agreed that the

Tribunal has wrongly made deductions for personal expenditure of the deceased at two different places. Accordingly, only 1/3 rd of the income of the deceased is liable to be deducted on account of expenditure, for personal expenses, keeping in mind the fact that the deceased had three dependents, namely, the wife and two minor children.

26. In view of the above observations, the loss of dependency would now come to Rs.20,40,180/- [(1,56,937 +30%-1/3) x 15]. The amended compensation amount as per this order comes to Rs.21,10,180/-.

27. The enhanced amount shall be paid by the two insurance companies in the ratio of 50% along with pendente lite interest @ 6% per annum from the date of filing of the claim petition till deposit in court. The said amount shall be released to the claimants in the ratio of 70% going to the widow of the deceased appellant no.1 Ms.Seema Jhamb and 15% to the children Manas Jhamb and Yamaya Jhamb respectively. The share of Yamaya Jhamb who is still a minor would be kept in a Fixed Deposit till the period she attains the age of 21 years. She will receive the proceeds on reaching the age of 21 years. Her mother will be entitled to withdraw the periodic interest from the said fixed deposit.

28. Appeal stands disposed of.

JAYANT NATH, J

SEPTEMBER 04, 2014 rb