Delhi High Court
New India Assurance Co.Ltd. vs Monika & Ors on 29 August, 2017
$~4 & 5 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 29th August, 2017
+ MAC.APP. 18/2016 and CM APPL.717/2016
NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. Ravinder Singh, Advocate with
Mr. Maheen Pradhan, Advocate
Versus
MONIKA & ORS ..... Respondents
Through: Mr. Navneet Goyal, Advocate
+ MAC.APP. 245/2016 and CM APPL.10266/2016
MONIKA & ORS ..... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
PAPPU RAM & ANR (NEW INDIA ASSURANCE CO LTD)
..... Respondent
Through: Mr. Ravinder Singh, Advocate with
Mr. Maheen Pradhan, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Sanjeev Kumar Sharma, aged over 36 years (born on
26.06.1973), died due to injuries suffered in a motor vehicular
accident that occurred on the intervening night of 09-10.08.2009 in the
area of Sunderpur bus stand turning, Jind Road, Rohtak Sadar due to
negligent driving of truck bearing registration No.RJ-02G-5518 by
Pappu Ram (the driver), son of Dalu Ram, one of the respondents in
these appeals. His wife and other family members dependent upon
him, they being appellants in MAC APP.245/2016 (collectively, the
claimants) instituted accident claim case (MACT Case
No.493/13/2010) on 20.03.2010, on which the tribunal held inquiry
and, by judgment dated 15.10.2015, the claim for compensation on
principle of fault liability was upheld, the liability to pay having been
fastened on the New India Insurance Company Limited (insurer), it
being appellant (in MAC APP.18/2016).
2. During the inquiry, the insurer had taken the plea of breach of
terms and conditions of the insurance policy on the ground that the
offending vehicle registered in the State of Rajasthan did not have a
valid permit for the place where the accident occurred and also that it
did not have any fitness certificate. The insurer led evidence by
examining N.K. Saxena (R2W1), who proved notice under Order 12
Rule 8 of the Code of Civil Procedure, 1908 (CPC) having been issued
by the insurer on 03.10.2013 (vide Ex.R2W1/2), it having been sent
by registered post (vide receipts Ex.R2W1/3-4) calling upon the said
Pappu Ram, impleaded as first respondent in the proceedings before
the tribunal, to produce the permit and fitness certificate, but there
having been no response thereto. The tribunal, however, declined to
grant any benefit on the said basis.
3. The claimants have come up with appeal (MAC APP.245/2016)
submitting that the loss of dependency has not been properly
calculated as the income proved through income tax returns (ITRs) for
the assessment years 2005-2006 to 2009-2010 (Ex.PW-1/5,
collectively) were not properly construed, the assessment having been
made on the basis of net income, ignoring the gross income that had
been declared for purposes of tax liability.
4. The insurer, on the other hand, has come up with an appeal
(MAC APP.18/2016) reiterating its plea of breach of terms and
conditions of the insurance policy and seeking the relief of recovery
rights.
5. Pappu Ram, the driver-cum-owner of the offending vehicle, in
spite of being served with notices in both the appeals has failed to
appear and has chosen to suffer the proceedings ex-parte. It is noted
that he had avoided participation in the proceedings even before the
tribunal.
6. Having heard the learned counsel for the claimants and for the
insurer, this court is of the opinion that both the appeal must be
allowed.
7. The tribunal has indeed fallen in error by proceeding on the
basis of net income declared in the ITRs for the five assessment years
each indicating progressive rise in income. The gross income declared
in these ITRs was Rs.90,909/-, Rs.1,06,495/-, Rs.1,11,189/-,
Rs.1,86,735/- and Rs.2,36,397/- for the assessment years 2005-2006,
2006-2007, 2007-2008, 2008-2009 and 2009-2010 respectively. In
these circumstances, the income for the said assessment year prior to
the death it being for the Assessment Year 2009-2010, in the sum of
Rs.2,36,397/- should have been treated as the bench mark. The
calculation, therefore, will have to be made afresh.
8. The tribunal applied the multiplier of 15 and made deduction of
one-fourth towards personal and living expenses, after adding the
element of future prospects to the extent of fifty per cent (50%). There
is no error in this approach. Thus, the loss of dependency on the
correct income is re-computed as (2,36,397/- x 150/100 x 3/4 x 15)
Rs.39,89,199/- rounded off to Rs.39,90,000/-.
9. Adding the medical expenses and other non-pecuniary damages
awarded by the tribunal, the total compensation payable in the case
comes to (39,90,000/- + 6,09,898/- + 25,000/- + 1,00,000/- + 10,000/-
+ 1,00,000/-) Rs.48,34,898/- rounded off to Rs.48,35,000/- (Rupees
Forty Eight Lakhs Thirty Five Thousand Only).
10. The award is modified accordingly. It shall carry interest as
levied by the tribunal.
11. Given the apportionment already made in favour of the other
claimants, it is directed that the entire enhanced portion of the award
with corresponding interest shall fall to the share of Monika (widow),
the first respondent (first claimant).
12. It is clear from the above discussion that the driver-cum-owner
of the offending vehicle in spite of the opportunity given, not only by
the tribunal but also in this appeal, has failed to come up to render any
assistance. He had due notice of the obligation on his part to bring
before the tribunal a valid permit and fitness certificate. Since he
failed to produce any reply to the said notice under Order 12 Rule 8
CPC, it has to be assumed that there was no valid permit or fitness
certificate. In these circumstances, the breach of condition of the
insurance policy has been brought home by the insurer.
13. Thus, while the liability to pay to the claimants as fastened by
the tribunal will have to be discharged by the insurance company even
in respect to the enhanced portion of award, it is granted recovery
rights against the said driver-cum owner of the vehicle.
14. By order dated 08.01.2016 (on the file of MAC APP.18/2016),
the insurance company had been directed to deposit the entire awarded
amount, which deposit, in terms of order dated 24.02.2016, was to be
made before the tribunal. The said deposited amount was released to
the claimants in terms of order dated 27.05.2016. Thus, the insurance
company will be obliged to pay the balance in terms of the modified
award by requisite deposit with the tribunal within thirty (30) days,
making it available to be released to the claimants. The amount thus
deposited will be released to the first claimant (widow) in the form of
fixed deposit receipt to be taken out from a nationalized bank for a
period of seven years with right to draw periodic interest.
15. The statutory amount shall be refunded to the insurance
company after proof is shown of the award having been satisfied.
16. Both the appeals along with accompanying applications stand
disposed of in above terms.
17. Dasti.
R.K.GAUBA, J.
AUGUST 29, 2017
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