Delhi High Court
National Insurnace Co. Ltd. vs Harsharan Bir Kaur Pandey & Ors. on 27 May, 2016
$~26 & 27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27.05.2016
+ MAC.APP. 1032/2013
NATIONAL INSURNACE CO. LTD. ..... Appellant
Through: Mr. L.K. Tyagi, Adv.
versus
HARSHARAN BIR KAUR PANDEY & ORS. ..... Respondents
Through: Mr. Kamal Mehta & Mr. Sudeep
Singh, Advs.
AND
+ MAC.APP. 24/2014
HARSHARAN BIR KAUR PANDEY & ORS. ..... Appellants
Through: Mr. Kamal Mehta & Mr. Sudeep
Singh, Advs.
NATIONAL INSURNACE CO. LTD. ..... Respondents
Through: Mr. L.K. Tyagi, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Ishwar Chandra Pandey, then aged about 54 years, died as a result of
injuries suffered in a motor vehicular accident that occurred involving
negligent driving of truck bearing No. HR 36 GA 0120 (offending vehicle),
admittedly insured against third party risk for the period in question with
National Insurance Company Ltd. (appellant in MAC Appeal No.
1032/2013). The dependent family members of Ishwar Chandra Pandey
(appellant in MAC Appeal No. 24/2014) instituted an accident claim case
(Suit No. 278/2003) on 24.04.2003 under Sections 166 and 140 of Motor
Vehicles Act, 1988.
2. The tribunal held inquiry and, by judgment dated 21.07.2013 upheld
the case of death having occurred due to negligent driving of the offending
vehicle. The said finding has since attained finality. By the said judgment,
the tribunal awarded compensation in the sum of ` 25,35,000/- with interest
@ 7.5% per annum from the date of filing of the petition (24.04.2003),
holding the insurer liable to pay.
3. Both parties, the insurer and the claimants, having felt aggrieved have
come with their respective appeals. While appellant questions the loss of
dependency on the ground the income declared in the income-tax return
(ITR) for the assessment year 2001-2002 (Ex.PW4/C) was wrongly adopted
because the same had been filed after the death, it also raises the issue of
addition of future prospects of increase to the extent of 30%, referring in this
context to the age of the deceased (54 years) and the fact that the ITRs for
the preceding assessment years, i.e. 1998-99 (Ex.PW2/A) and assessment
year 2000-2001 (Ex.PW2/B) indicated fluctuation in the income. The
insurance company then raises the issue of penal interest pointing out that
the tribunal has directed in (para 13 of) the judgment that it was to deposit
the awarded amount within a period of 30 days, failing which the rate of
interest would stand enhanced to the extent of 12% per annum "for the
period of delay".
4. Per contra, the claimants in their appeal argue that the tribunal had
wrongly excluded from consideration the amount of tax deducted at source
( ` 44,773) as shown in the ITR (Ex.PW4/C) stating that the benefit of same
required to be accorded.
5. The argument of the insurer against adoption of the ITR for the
assessment year 2001-2002 as the benchmark on the ground it was filed
after the death must be rejected for the simple reason the declaration in the
said ITR is supported by proof of tax deducted at source and, therefore, it
cannot be said to be just in the air. The inclusion of the element of future
prospects of increase, however, was erroneous for the reason the deceased
had already turned 54 and per dictum in Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121, no such element could
have been taken into consideration. Further, ITR for preceding year shows
that there was no regularity in the earnings. Rather, the income was
fluctuating upwards and downwards and, therefore, there is no clear proof of
progressive rise over the period. The submission of the claimants with
regard to the tax deducted at source is apparently fallacious. The tribunal
has computed the income on the basis of average of 8 months for the
assessment year 2001-02 and also made calculation correspondingly as to
the tax payable thereupon. For these calculations, the tribunal need not even
go into the question as to whether tax was properly deducted at source or
not.
6. Thus, the loss of dependency has to be recalculated.
7. Since the tribunal had found the net income to be ` 2,60,098, applying
the multiplier of 11 (rightly so chosen by the tribunal), the loss of
dependency comes to (260098 x 2 ÷ 3 x 11) ` 19,07,385/- rounded off to `
19,08,000/-.
8. It is noted that the tribunal awarded only `10,000/- each towards love
& affection. Having regard to the date of accident and following the view
taken in Madhu Marwaha & Anr. Vs. Dal chand & Anr. decided on 1st
February, 2016, award of ` 50,000/- each towards love & affection and loss
of consortium, ` 10,000/- towards funeral expenses and loss to estate are
granted. In this view, the total compensation payable in the case is
computed as (19,08,000 + 1,20,000) ` 20,28,000/-.
9. Following the consistent view taken by this Court, however, the plea
of the claimants with regard to rate of interest must be accepted. It is
increased to 9% per annum 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.].
10. This Court does not find any impropriety in the direction about the
time bound deposit of the award and in case of default the imposition of
penal interest. Of course, the liability of penal interest would arise having
regard to the terms of the order whereby this Court had granted stay against
enforcement.
11. The award is thus, modified also with increase in the rate of interest.
12. By order dated 13.11.2013, the insurance company had been directed
to deposit 60% of the awarded amount with upto date interest with the
Registrar General within the period specified from which 40% was allowed
to be released, the balance kept in fixed deposit receipt for a period of six
months to be renewed periodically. Since the awarded compensation has
been reduced, the Registrar General shall now calculate the amount payable
to the claimants as per their shares in the impugned judgment and release the
same from the balance refunding excess, if any, with statutory deposit, if
made, to the insurance company. Conversely, if any amount stands
outstanding, the insurer shall deposit the balance with the tribunal within 30
days making it available to the claimants.
13. The appeals stand disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 27, 2016
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