Delhi High Court
The New India Assurance Co.Ltd vs Sanjeev Jain & Ors on 23 May, 2016
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.05.2016
+ MAC.APP. 889/2014 and CM No.16394/2014
THE NEW INDIA ASSURANCE CO.LTD ..... Appellant
Through: Mr. R.K. Tripathi, Advocate
versus
SANJEEV JAIN & ORS ..... Respondents
Through: Ms. Hreeshika Bhargava, Adv. for R-1
to 3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Seema Jain, aged 44 years, self employed statedly earning her
livelihood from tutorial work died as a result of injuries suffered in a motor
vehicular accident that occurred on 29.09.2013 involving negligent driving
of a motor vehicle bearing registration no.DL-1LL-9302 (offending vehicle),
admittedly insured against third party risk with the appellant insurance
company (insurer) for the period in question. On their claim petition
(registered on the basis of a detailed accident report no.D 435/13 on
26.10.2013), the Motor Accident Claims Tribunal (tribunal) awarded
compensation in the sum of ₹24,01,780/- with interest at the rate of 9% p.a.
in favour of the first to third respondents (claimants) directing the insurer to
pay.
2. The insurer is in appeal and questions the calculation of loss of
dependency on the ground it has been wrongly computed with the element
of 30% of future prospects of increase.
3. Having heard both sides and having gone through the tribunal's
record, this court finds no error committed by the tribunal in the calculation
of loss of dependency. The tribunal had considered the evidence and has
reached the appropriate conclusion thus : -
"..10. The PW-1, the petitioner no.1 stated that deceased was
self employed and was 46 years of age and was running tuitions
/ coaching center and was earning ₹2,57,000/- per annum. The
PW-1 stated that eth deceased left behind two children besides
the petitioner no.1. The PW-1 exhibited his Aadhar card as Ex.
PW-1/1, Aadhar card of Seema Jain as Ex. PW-1/2, Aadhar
card of Arpit Jain as Ex. PW-1/3, Aadhar Card of Prachi Jain
as Ex. PW-1/4, Pan card of Seema Jain as Ex. PW-1/5, dead
body receipt as Ex. PW-1/6, driving licence of Ms. Seema Jain
as Ex. PW-1/7, death certificate as Ex. PW-1/8, educational
documents of Seema Jain as Ex. PW-1/9, detailed accident
report as Ex. PW-1/10, income tax returns for the assessment
years 2012-13, 2011-12, 2010-11, 2009-10 and 2008-09 as Ex.
PW-1/11 (collectively). During cross-examination the PW-1
stated that he did not have any document to show that his wife
was running any tuitions center and did not have any document
regarding charging of tuitions fee from the students.
11. The PW-2, Sh. Joginder Singh, Tax Assistant, Income Tax
Department produced the income tax returns for the assessment
year 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13 as Ex.
PW-2/1 (colly).
12. I have gone through the material on record. The petitioner
has placed on record computation of income and tax return for
the assessment year 2008-09, 2009-10, 2010-11, 2011-12 and
2012-13, Ex. PW-1/11. The computation for the assessment
year 2008-09 shows that deceased was having gross income of
₹1,85,312/-. The gross income includes the income from house
property of ₹72,000/-. The interest income which is accruing
from Bank, FDR and income from house property cannot be
considered for calculating the compensation as the petitioners
will continue to get the said amount. Therefore, the income for
the assessment year 2008-09, comes to ₹1,34,912/-. The
computation of assessment year 2009-10, 2010-11, 2011-12 and
2012-13 shows gross income of ₹2,54,181/- respectively.
Similarly, after deduction of rental income from house property
and interest on savings, the income for respective years comes to
₹1,47,526/-, ₹1,53,717/-, ₹1,63,223/- and ₹1,78,581/-.
13. Under the facts and circumstances, income, as per the ITR
for the assessment year 2012-13 (last ITR), can be taken into
consideration for calculating the compensation. It shows
income of ₹1,78,581/-.
xxx
16. In the present case as noted above, the yearly income of the
deceased at the time of death is taken to be ₹1,78,581/- per
annum. The deceased was 44 years of age (as per PAN Card,
Ex. PW-1/5). Adding 30% of the amount, the annual income of
the deceased comes to ₹2,32,155/- (₹1,78,581/- + ₹53,574/-).
17. The petitioner no.1 is the husband of the deceased and
failed to show that he was having no source of income. The
petitioner no.2 is 18 years of age and petitioner no.3 is 16 years
of age and stated to be dependent. No evidence in rebuttal is led
by insurance company. Therefore, there are two dependents on
the income of the deceased i.e. petitioner no.2 and 3. Interest of
justice in the present case would be met if 1/3rd i.e. ₹77,385/- is
deducted as the personal and living expenses of the deceased.
After such deduction, the contribution to the family (dependents)
is determined as ₹1,54,770/- per annum. The multiplier
applicable would be 14 having regard to the age of the deceased
i.e. 44 years (as mentioned in PAN card, Ex.PW-1/5) at the time
of the death. Therefore, the total loss on dependency would be
₹1,54,770/- x 14 = ₹21,66,780/-..."
4. Having regard to the irrefutable evidence brought on record showing
progressive rise in the income from the business, the element of future
prospects of increase cannot be grudged. [see judgment dated 28.03.2016 in
MAC.APP. 548/2013 United India Insurance Co. Ltd. v. Kamla & Ors.]
5. It is noted that the tribunal has awarded ₹1 Lakh each towards loss of
love and affection and loss of consortium besides ₹ 10,000/- towards loss of
estate and ₹25,000/- towards funeral expenses. It is pointed out by the
counsel for the claimants that the accident had occurred on 29.09.2013. In a
case of similar vintage, decided as MACA 160/2015, titled: Shri Ram
General Insurance Co. Ltd. Vs. Usha and Ors., this court by judgment dated
05.05.2016, awarded ₹1,50,000/- each towards loss of love and affection
and loss of consortium and ₹50,000/- each towards funeral expenses and
loss to estate. Similar awards are made in this case in lieu of the amounts
granted by the tribunal under the non-pecuniary heads of damages.
6. Thus, the total compensation in the case stands enhanced by
₹1,65,000/-. Needless to say, it shall carry interest as levied by the tribunal.
The enhanced portion of the compensation with corresponding interest shall
fall to the share of the first claimant (first respondent).
6. By order dated 29.09.2014, the insurance company had been directed
to deposit the entire awarded amount with accumulated interest with the
Registrar General of this court within the period specified and out of such
deposit, 70% was allowed to be released, the balance kept in fixed deposit
receipt with the UCO Bank, Delhi High Court Branch, New Delhi. The
balance shall also now be released to the claimants. The insurance company
shall pay the remainder of its liability under the modified award by requisite
deposit with the tribunal within 30 days making it available to be released.
7. The statutory deposit, if made, shall be refunded after it is confirmed
that the award has been satisfied.
8. The appeal and the pending application are disposed of in above
terms.
(R.K. GAUBA)
JUDGE
MAY 23, 2016
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