Delhi High Court
Mamta & Ors vs Sazid Ali & Ors on 27 May, 2016
$~R-114
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 20/2008
MAMTA & ORS ..... Appellant
Through None
versus
SAZID ALI & ORS ..... Respondent
Through Mr. Amit Gaur and Mr. Pradeep
Gaur, Advs. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Harkesh Kumar, aged 26 years, died as a result of injuries suffered in
motor vehicular accident that occurred on 10.11.2005, involving negligent
driving of van bearing No.DL 5CC 3127 (offending vehicle), admittedly
insured against third party risk with the third respondent (insurer) for the
period in question. The dependent family members (the appellants)
instituted an accident claim case on 20.03.2006 (petition No.415/06) seeking
compensation under Sections 166 & 140 of Motor Vehicles Act, 1988 (MV
Act) on the averments that the accident had occurred due to negligent
driving of the said van by Sazid Ali (first respondent) and it being owned by
Nooruddin (second respondent), both were liable jointly and severally to pay
the compensation. The insurance company was impleaded on account of
insurance policy and its liability to indemnify. After inquiry, by judgment
dated 13.09.2007, the motor accident claims tribunal (tribunal) upheld the
case of death on account of negligent driving of the offending vehicle. It
awarded compensation in the sum of `6,44,141.80, which included
`80,000/- towards loss of love & affection and `20,000/- towards funeral
expenses besides `5,44,141.80 calculated as loss of dependency. It was
directed to be paid with interest at 7.5% per annum.
2. The appellant filed the present appeal submitting grievance that the
compensation awarded is inadequate.
3. The appeal was admitted and put in the category of regular matters.
During the pendency of the appeal, on their request, the appellants were
allowed liberty to lead additional evidence under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 (CPC). They examined Trilok Chand
(A1W1) and Anand (A1W2) primarily to bring home the facts that the
deceased was running a automobile workshop in the name and style of
"Jagdamba automobiles" earning `25,000/- to `30,000/- per month.
4. At the final hearing, however, no one appeared for the
claimants/appellants to assist. The arguments of the counsel for the insurer
(third respondent), who only appears have been heard.
5. It is noted that the claimants had relied upon, before the tribunal,
income tax returns (ITRs) for the assessment years 2004-05 (Ex.PW5/2) and
2005-06 (Ex.PW5/3). The tribunal had some reasons to suspect the said
ITRs. It observed that it had called upon the claimants to submit the copy of
the challan but the same was never filed. It was observed in the impugned
judgment (para 12) that the purpose of calling for the challan was to
ascertain whether the returns had been submitted by the deceased himself
and whether he had paid the income tax or not.
6. In the considered view of this Court, the reasons set out in the
impugned judgment for rejecting ITRs (Ex.PW5/2 and PW5/3) were not
correct. The tribunal failed to take note of the fact that in the latter return,
the claimant had declared that there was no tax payable and, thus, no tax had
been paid. The ITRs clearly show that they had been filed during the
lifetime of the deceased on 05.05.2005 and 29.07.2005. There was,
therefore, no reason to disbelieve the said ITRs. Even otherwise, in the face
of the additional evidence led under Order 41 Rule 27 CPC during the
pendency of this appeal, the evidence about the income tax returns deserves
to be believed.
7. The ITRs show that the deceased had declared an income of `56,570/-
from business during the assessment year 2004-05. Similarly, he had
declared an income of `90,350/- for the assessment year 2005-06. In the
face of these declarations, the claim about income at a higher level as sought
to be brought on record through additional evidence led during appeal
cannot be believed.
8. The evidence about the income declared in the ITRs as mentioned
above, however, should have been accepted. The loss of dependency is,
therefore, calculated afresh on such basis.
9. The ITRs for the two years clearly show progressive rise in the
income. With such irrefutable evidence on record, the element of future
prospects of increase to the extent of 50% deserves to be granted. Thus, the
income for calculating the loss of dependency is worked out as (90,350 x
150 ÷ 100) `1,35,525/- per annum. Since there are six claimants (the
appellants), 1/4th is deducted towards personal & living expenses. In view
of the age of the deceased (26 years), the multiplier of 17 applies. Thus, the
loss of dependency is calculated as (1,35,525 x 3 ÷ 4 x 17) `17,27,944/-
rounded off to `17,28,000/-.
10. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of `1 lakh each on account of loss of love &
affection and loss of consortium and `25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation payable in the
case is computed as (17,28,000 + 2,50,000) `19,78,000/-.
11. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
12. The tribunal had awarded specific shares in the compensation to
children leaving the rest to the widow. Since the award has been modified,
the entire enhanced portion of the compensation with effect of increase of
interest shall be payable to the widow alone. The insurer is directed to
deposit the entire enhanced portion of the award with the tribunal within 30
days to make it available to be released to the claimant (first appellant). The
amount payable under the enhanced award, upon being deposited, shall be
released after being invested in a fixed deposit receipt in a nationalized bank
of the choice of the claimant (widow) in her name for a period of 10 years
with right to draw monthly interest.
13. The appeal is disposed of in above terms.
14. The Registry shall send copy of the judgment to the appellants
(claimant) by registered post at their address.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
VLD
