Rama Kukreja & Ors. vs Yuwan Kant Bakshi & Ors.
2016 Latest Caselaw 1858 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of Decision: 8th March, 2016
+      MAC APPEAL No.1122/2011

       RAMA KUKREJA & ORS.                              .... Appellants
                   Through:             Mr. Manu Shahalia, Adv.

                          Versus

       YUWAN KANT BAKSHI & ORS.           .... Respondents
                   Through: Mr. Shoumik Mazumdar, Adv. for R-
                            2.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. Harbans Lal Kukreja, then aged 57 years, statedly working as Railway Clearing and Forwarding Agent, suffered death due to injuries sustained by him in a motor vehicular accident that occurred at 9.15 p.m. on 23.07.2008 involving car bearing registration No.UA 07T 6055 which was admittedly insured against third party risk with the second respondent (insurer) for the period in question. On the claim petition brought under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) by his widow and children, now the appellants (claimants), the motor accident claims tribunal (the tribunal) by judgment dated 20.09.2011 awarded compensation in the sum of ₹6,72,470/- with interest @ 7.5% per annum from the date of filing the petition (15.03.2010) till realization, calculating the compensation as under:-

      Medicines and Medical treatment         Rs.24,720/-
     Loss of financial dependency            Rs.6,12,750/-
     Loss of love and affection              Rs. 10,000/-
     Loss of consortium                      Rs.10,000/-
     Funeral Expenses                        Rs. 5,000/-
     Loss to Estate                          Rs.10,000/-

     Total                                   Rs.6,72,470/-

2. By this appeal, the claimants seek enhancement of the compensation mainly contending that the loss of financial dependency has been wrongly calculated on the basis of income tax return (ITR) for the assessment year 2007-2008, ignoring ITR for the subsequent assessment year 2008-2009 which had shown higher level of income. On the same facts, it is submitted that the element of future prospects also should have been added on which the tribunal has not taken the proper view. The claimants also contend that the award under non-pecuniary heads of damages is unduly low.

3. Having heard both sides and perused the record of the tribunal, it is found that the income declared for the assessment year 2007-2008, as per ITR (Ex.PW1/5) submitted on 26.3.2008 has been correctly adopted as the benchmark by the tribunal. The ITR for the subsequent year 2008-2009 (Ex.PW1/6) submitted on 16.09.2009 apparently by the legal heirs of the deceased, more than one year after the death, cannot be a safe material to calculate the income of the deceased.

4. Since the deceased was 57 years old, even if it were to be assumed that the element of future prospects were to be taken into account, having regard

to the dictum of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the view taken by the tribunal cannot be faulted.

5. There is, however, substance in the grievance with regard to the non- pecuniary heads of damages. Following the view taken by the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, the award of ₹ 1 lakh each under the heads of loss of consortium and loss of love & affection and ₹25,000/- each towards funeral expense and loss of estate deserve to be added. This would mean a net increase in the compensation by ₹ 2,15,000/- in the compensation awarded. The award is enhanced accordingly.

6. The rate of interest levied by the tribunal also deserves to be increased. Following the consistent view taken by this Court , it is directed that the awarded amount shall carry interest @ 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)]

7. The tribunal had apportioned the award by specifying the amounts falling to the share of each of the four claimants. In view of the amounts already apportioned in favour of the second to fourth respondents, it is directed that the entire enhanced portion of the compensation inclusive of what would accrue due to the increased rate of interest shall go to the first respondent (widow), it being put in a fixed deposit receipt in a nationalized bank initially for a period of four years with liberty to draw monthly interest.

8. The appeal is disposed of in above terms.

9. The insurance company is directed to deposit the amount payable in terms of the above modification with the tribunal within 30 days whereupon it shall be released as above.

R.K. GAUBA (JUDGE) MARCH 08, 2016 nk