Delhi High Court
Phoolwati & Anr. vs Devender & Ors. on 11 December, 2017
$~R-685
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th December, 2017
+ MAC. APP. 1265/2012
PHOOLWATI & ANR. ..... Appellants
Through: Nemo.
versus
DEVENDER & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant had instituted accident claim case (MACT
No.05/12/06) on 11.09.2006, seeking compensation under Sections
166 and 140 of the Motor Vehicles Act, 1988, on account of death of
retired Lt. Col. Om Prakash, in a motor vehicular accident that had
occurred on 30.08.2005, due to negligent driving of motor vehicle
described as truck bearing registration No.HR-55-7994, which was
admittedly insured against third party risk with the third respondent
(insurer) for the period in question.
2. The tribunal decided the said case, by judgment dated
12.09.2012, and awarded compensation in the total sum of
Rs.4,75,312/-, with interest @ 9% per annum, fastening the liability on
the insurer to pay.
3. The appeal was filed submitting the prime grievance that the
loss of dependency had not been properly evaluated.
4. The appeal was put in the list of „Regulars‟ by order dated
18.02.2016, with direction to come up on its own turn. When it is
called out in its own turn, there is no appearance on behalf of the
claimants/appellants. The learned counsel for the insurer has been
heard and with his assistance record perused.
5. It is noted that the victim was 52 years' old when the death
occurred. He had retired from active army service on 03.10.2001.
The evidence would show that after taking retirement from service, he
had applied for licence for certain agencies, including dealing in oil
products and coal transportation work. He eventually set up a
business of milk and milk processing, investing his savings in the said
business, also utilizing loan facility taken, the venture having been
given the name of Kamdhenu Dairy Project and Processing Plant. It
is an admitted case of the claimants that the said project did not bring
profits, even the loan amount having turned into non-performing
assets (NPA). The relevant facts on the basis of which the tribunal
made the assessment of loss of dependency, as noted in paras 58 to 66,
need to be extracted. They read as under:-
"58. The deceased had borrowed heavily from
Corporation Bank to start business of dairy farming. He
had taken a loan of more than Rs.1,50,00,000/- for this
purpose.
59. Evidence of PW-3 Sh. Habib Garib, Assistant
Manager of Corporation Bank revealed that repayment of
that loan had to commence after a moratorium period of
six months and from 7th month to 83rd month, installment
of Rs.2,07,000/- had to be given and 84th installment was
to be Rs.1,99,000/-.
60. PW-3 further disclosed that deceased could not
honour terms and conditions of borrowed loan inasmuch
as after expiry of moratorium period of six months, he did
not start giving installments to the bank but requested for
further moratorium period of six months i.e. a total
moratorium period of one year but even after lapse of one
year, no installment was given by the borrower to the
bank.
61. The above would show that though the deceased
had started the business with all earnest but profit had
eluded him and he was not even in a position to pay
installments of loan to the bank. The above would show
that petitioners was not earning or making profits from
his dairy firm business. Therefore, for the purposes of
computation of loss of dependency for the family, no
reliance can be placed on the fact that the deceased had
started dairy farm business.
62. Furthermore, the evidence of PW-2 shows that the
deceased might have got an opportunity to work as Coal
Transport Company after passage of eight years.
63. Therefore, no note can be taken with regard to
possibility of deceased working as a Coal Transport
Company because it will be in the realms of conjectures
and surmises whether deceased would have got Coal
Transport Company even after eight years or not and
whether he would have made any profit or not.
64. Moreover, petitioners have not brought any
evidence on record to show that similarly placed
Ex.Servicemen working as Coal Transport Companies
were earning profits and quantum of said profit.
65. Evidence of PW-5 who exhibited order passed by
Excise and Taxation Officer cum Taxing Authority,
Rewari is also not of any help for this Tribunal to decide
loss of dependency for the claimants because it is an
order for cancellation of RC by the dealer. As per this
order, tax free sales were Rs.9,02,198/- in financial year
2004-05. It does not give any indication about profits
being earned by the deceased.
66. Deceased was not an Income Tax Payee."
6. There is nothing in the appeal from which the above mentioned
conclusions of the tribunal could be faulted.
7. Thus, no case is made out for any modification in the award.
8. The appeal is dismissed.
R.K.GAUBA, J.
DECEMBER 11, 2017
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