Delhi High Court
Oriental Insurance Co Ltd vs Gyan Devi & Ors on 18 May, 2016
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:18th May, 2016
+ MAC.APP. 1/2015
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr.L.K.Tyagi, Adv.
versus
GYAN DEVI & ORS ..... Respondent
Through Mr.Gurmit Singh Hans and Ms.Aarti
Manchanda, Adv. for R-1 to R-5.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Pawan Kumar died in motor vehicular accident which occurred on
17.11.2010 on account of the negligent driving of a Tempo bearing
registration No. DL-1LD-6646 (the offending vehicle) admittedly insured
against third party risk with the appellant (the insurer) for the period in
question. The first to fifth respondents (the claimants), the dependent family
members of the deceased, instituted an accident claim case (Suit No.
174/2014) before the Motor Accident Claim Tribunal (the Tribunal) on
15.02.2011, in the wake of a detailed accident report (DAR) submitted by
the police on the basis of evidence gathered during the investigation into the
corresponding criminal case registered by it. The Tribunal held inquiry and,
by judgment dated 09.10.2014, upheld the case of death having occurred due
to negligent driving of the offending vehicle. This finding has attained
finality as it was not further challenged. The tribunal assessed the
compensation in the sum of Rs.34,75,500/- and awarded it with interest in
favour of the claimants calculating the loss of dependency at Rs.32,40,000/-,
adding loss of consortium at Rs.1,00,000/-, loss of love and affection at
Rs.1,00,000/-, funeral Charges Rs.25,000/- and Rs.10,000/- towards loss to
estate. The insurer, which has been burdened with the liability to pay,
questions the calculation of loss of dependency on the ground that the
Tribunal has proceeded to assess the income on the basis of income tax
return (ITR) only of one assessment year 2010-11 (Ex. PW-1/5) and on that
basis added the element of future prospects of increase to the extent of 50%,
after rounding off the income as indicated by the ITR. This in the
submission of the insurer was incorrect. It further questions the levy of
penal interest @ 12% per annum in case the awarded compensation was not
deposited within the period of 30 days.
2. Having heard arguments on both sides and having gone through the
Tribunal records, it is found that the contentions of the insurer about the
assessment of income and loss of dependency must be rejected. It is noted
that the claimants had proved not only the ITR for the assessment year 2010-
11 (Ex.PW-1/5), which only was referred to by the Tribunal in the impugned
judgment, but also the ITR for the assessment year 2008-09 (Ex.PW-1/3)
and for assessment year 2009-10 (Ex.PW-1/4). A perusal of the said ITRs
reveals that the income of Rs.1,13,449/- declared for assessment year 2008-
09 had increased to 1,57,935/- in assessment year 2009-10 and further to
Rs.1,74,098/- in the assessment year 2010-11. There is, thus, irrefutable
evidence available on record to show progressive rise in income. In these
circumstances, the calculation of loss of dependency made by the Tribunal
with the element of future prospects cannot be questioned. [see judgment
dated 28.03.2016 in MAC.APP. 548/2013 United India Insurance Co. Ltd.
v. Kamla & Ors.].
3. It is noted that the tribunal awarded Rs.10,000/- only towards loss of
estate. The amount is increased to Rs.25,000/- in view of the judgment in
Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150.
4. Further, following the consistent view taken by this court, the rate of
interest is increased to 9% per annum from the date of filing of the appeal
till realization [see judgment dated 22.02.2016 in MAC.APP. 165/2011
Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.].
5. Since the execution of the award was stayed by order dated
05.01.2015, subject to 50% of the awarded amount with proportionate
interest being deposited within the period granted, it is directed that penal
interest shall not take effect in the manner directed by the Tribunal in (para
34 of) the impugned judgment. As per the order dated 05.01.2015, one-half
of the amount awarded by the Tribunal with proportionate interest has
already been deposited and released to the claimants. The insurance
company shall now deposit the balance of its liability with the improvement
made as above in the award with the Tribunal within 30 days of this
judgment failing which the direction about penal interest shall come into
effect. Upon deposit being made, the Tribunal shall proceed to release the
balance to the claimants.
6. Statutory deposit, if any, shall be refunded.
7. The appeal is disposed of in the above terms.
R.K. GAUBA
(JUDGE)
MAY 18, 2016
mr
