Delhi High Court
National Insurance Co Ltd vs Mandeep Kumar Chopra & Ors on 16 February, 2016
Author: R. K. Gauba
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16th February, 2016
+ MAC.APP. 193/2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. L. K. Tyagi, Adv.
versus
MANDEEP KUMAR CHOPRA & ORS ..... Respondents
Through: Mr. Rajat Malhotra, Mr. Sunil
Malhotra & Mr. Jitender Kumar,
Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The insurance company is in appeal under Section 173 of the Motor
Vehicles Act, 1988 (the MV Act) questioning the computation of
compensation by the motor accident claims tribunal (the tribunal) in claim
case under Sections 166 and 140 of the MV Act, registered as petition
no.81/2011, decided by judgment dated 09.12.2013. The claim case had
been preferred by the first to third respondents herein on account of death of
Smt. Rama Chopra in a motor vehicular accident that occurred on
28.11.2010 involving truck container bearing registration no. HR-55E-8209
(the offending vehicle) which concededly was insured against third party
risk with the third respondent (the insurer).
2. The tribunal awarded compensation in the sum of `11,52,800/- with
interest at the rate of nine percent (9%) from the date of filing of petition till
realization, out of which `9,92,800/- was calculated as loss of dependency
which primarily is the bone of contention raised by the insurance company.
3. It is pointed out by the appellant that the affidavit of the first
respondent (first claimant) submitted in evidence before the tribunal during
inquiry itself had indicated that the deceased had retired from the service of
Canara Bank, and was drawing pension of `11,000/- per month. It was
claimed that she was also earning of `10,000/- per month from private
tuitions in addition to income on account of rent and interest. The elements
of interest and rental income were kept out for the reason there would be no
loss, as the said benefits would continue even after the death. The claim on
account of tuition was disbelieved because the computation of the income
for the assessment year 2010-2011, proved as document Ex.PW1/8
(wrongly described in the impugned judgment as income tax return) would
not show any such income to have been declared.
4. The learned counsel for the insurer in appeal argued that the pension
income being in the sum of `1,32,000/- per annum, the annual income
calculated at `1,65,466/- by the tribunal is clearly erroneous.
5. On being asked to justify, the learned counsel for the claimants
argued that the income tax return (Ex.PW1/8) submitted before the tribunal
itself had indicated the total receipt on account of pension in the assessment
year in question to be `2,07,538/-. On being pointed out that the said
document is not an income tax return, the learned counsel submitted that the
income tax return was submitted to the income tax department in one page
format which would not reveal the computation and, hence, the document
containing the computation only was submitted. This, in the opinion of the
court, was not correct as document in part should not have been presented.
The income tax return with computation of total income only would have
been the correct document to be submitted in evidence. Be that as it may,
going by the averments made in (para 10 of) the affidavit of the first
claimant, the income beyond `1,32,000/- on account of pension could not
have been accepted.
6. The learned counsel for the claimant, however, argued that it was not
correct on the part of the tribunal to disbelieve the claim about the income
from private tuitions. He relied upon the judgment reported as Jitendra
Khimshankar Trivedi v. Kasam Daud Kumbhar (2015) 4 SCC 237. The
judgment cited at bar has no application to the case at hand since in that
case assessment was made with regard to the notional income of the
deceased, a housewife, having regard to her contribution to the
housekeeping/domestic work. The claim of income from tuitions has been
rightly disbelieved as the same does not find reflection even in the income
tax calculation which was submitted as evidence.
7. The loss of dependency has, thus, to be recomputed, on the basis of
income of the deceased proved as `1,32,000/-. Having regard to the age at
which the death occurred, there is no possibility of any future prospects
being factored in.
8. It is the contention of the insurance company that none of the three
claimants were financially dependent and, therefore, the claim of loss of
dependency cannot be allowed. The submission is wholly unjustified as
dependency is not only on account of financial contributions of the deceased
wife/mother.
9. Having regard to the number of dependants, one third has been
correctly deducted on account of personal and living expenses. In this view,
the loss of dependency may be calculated as (1,32,000x2/3) `88,000/-.
Since the deceased was 58 years old, the tribunal correctly adopted the
multiplier of nine (9). Thus, the loss of dependency comes to (88,000x9)
`7,92,000/-.
10. It is the grievance of the claimants that award of non-pecuniary
damages under head of loss of love & affection `25,000/- is on the lower
side. Having regard to the view taken in [Rajesh & Ors. vs. Rajbir & Ors.,
(2013) 9 SCC 54], award under that head has to be increased to `1,00,000/-.
Adding the award of compensation of `1,00,000/- on account of loss of
consortium, `25,000/- for funeral expenses and `10,000/- towards loss of
estate, the total compensation comes to `10,27,000/-.
11. The award is, thus, modified. The compensation payable to the
claimant is reduced to `10,27,000/-. It shall carry interest at the rate
determined by the tribunal.
12. The tribunal apportioned the compensation amongst the claimants by
specifying the amounts which would fall to their respective shares. In the
given facts and circumstances, the share of the first respondent (husband)
shall remain undisturbed. The balance amount payable with proportionate
interest shall come to the other claimants in equal proportions.
13. The insurance company had been directed by order dated 03.03.2014
to deposit the entire awarded amount with up-to-date interest with the
Registrar General within the period specified, and thereupon seventy
percent (70%) of the awarded amount was to be released to the claimants
keeping the balance in fixed deposit receipts.
14. The Registrar General shall now recalculate the amounts payable to
the claimants and disburse the balance, if any in terms of the
aforementioned directions and refund the excess, with statutory deposit, to
the insurance company.
15. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 16, 2016
ssc
