National Insurance Co. Ltd vs Ashok Kumar Dogra (Deceased)& Ors
2016 Latest Caselaw 1751 Del

$~32
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of Decision: 3rd March, 2016
+      MAC.APP. 400/2015 & CM Nos. 8072/2015, 8074/2015, 8098/2016

       NATIONAL INSURANCE CO. LTD.               ..... Appellant
                    Through: Mr. Pankaj Seth, Adv.

                           versus

    ASHOK KUMAR DOGRA (DECEASED)& ORS...... Respondents
                  Through: Mr. Roshan Santhalia, Adv. for R-2 &
                           3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                           JUDGMENT

R.K.GAUBA, J (ORAL):

1. By judgment dated 12.1.2015, the motor accident claims tribunal (the tribunal) awarded compensation in the sum of ₹ 69,28,728/- with interest @ 7.5% per annum from the date of filing of the petition (19.1.2013) till realization in favour of the first to third respondents (collectively, the claimants) on their claim petition under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) registered as MACT Case No. 19/2013 on account of death of Saroja Dogra in a motor vehicular accident that occurred on 5.9.2012 involving car bearing No. HR 20W 9099 concededly insured with it against third party risk for the period in question. It is noted that the claimants before the tribunal included the husband Ashok Kumar Dogra and two minor children. During the pendency of the said inquiry, Ashok Kumar Dogra (husband) died and, thus, the matter was prosecuted further on behalf of the surviving claimants.

2. In arriving at the amount payable as compensation as above, the tribunal took note of the fact that the deceased was 32 years old working as Finance Coordinator with Agilent Technologies (International) Pvt. Ltd, her gross income from the said employment having been proved to be Rs. 36,479/50 as per the salary slip (Ex.PW3/4) affirmed on oath by Kshitize Gupta (PW-3), Payroll and HR Manager of the said entity. The tribunal added 50% towards future prospects and on that basis calculated the loss of dependency.

3. The contention of the insurance company in appeal is twofold. First, that the salary slip (Ex.PW-3/4) shows allowance described as "FBP" in the sum of Rs. 9,114/70 . It is contended that this could not have been included in the income. The second contention is that the element of future prospects has been wrongly added.

4. Upon consideration of the submissions in the light of the facts and circumstances, this Court is of the opinion that the insurance company must fail on both the said counts.

5. During the arguments, the learned counsel for the insurance company explained that "FBP" allowance means an allowance to take care of leave travel expenses, food coupons, gift coupons, vehicle running and maintenance etc. This, in the submission of the counsel, could not have been treated as a regular income. This Court does not accept this submission as the said benefits are also shown by the evidence to be income regularly accruing from the employment, being part of the terms and conditions of the engagement. The said allowance would have taken care of expenses which the deceased employee would otherwise have been incurring under the said specific heads from the remaining resources.

6. The argument against inclusion of future prospects is also misplaced as the evidence on record shows that the deceased was in regular employment and given her educational background and status, the income would have seen progressive rise.

7. Whilst the contentions of the insurance company in appeal cannot be upheld, a small correction needs to be made in that the interest awarded is on the lower side. Following the consistent view taken by this Court, the interest is increased to 9% from the date of filing of the petition till realization. [See judgment dated 22.02.2016 in MAC.APP. 165/2011 (Oriental Insurance Co Ltd v. Sangeeta Devi & Ors)]

8. By order dated 07.05.2015, it was noted that the awarded amount had been recovered by attachment but under directions of this Court only `2,00,000/- each was released to respondent No. 1 to 3. It is directed that the tribunal shall now release the balance lying with it to the claimants as per their respective shares. The insurance company would undoubtedly have to deposit more on account of increase in the interest which it must do within 30 days of this order, whereupon the tribunal shall release the same in terms of the modified award.

9. Statutory deposit, if made, shall be refunded.

10. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) March 03, 2016 Nk