Delhi High Court
Iffco Tokio General Insurance Co ... vs Ashu Munjal & Ors on 19 July, 2017
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th July, 2017
+ MAC.APP. 277/2016 and CM APPL.39043/2016
IFFCO TOKIO GENERAL INSURANCE CO LTD
..... Appellant
Through: Ms. Suman Bagga, Advocate
with Mr. Pankaj Gupta, Adv
versus
ASHU MUNJAL & ORS ..... Respondents
Through: Mr. Pratap Singh Yadav, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Yogesh Munjal, aged 42 years, working as Manager with M/s.
Orange Apparels, died as a result of the injuries suffered in a motor
vehicular accident that occurred on 21.11.2014 involving rash driving
of motor vehicle described as Maruti Car bearing registration No.HR-
26-CG-5598 which was admittedly insured against third party risk for
the period in question with the appellant insurance company (the
insurer), on the accident claim case (Suit No.129/15), taken out in the
wake of the Detailed Accident Report (DAR) submitted by the local
police pursuant to the investigation into First Information Report
(FIR) No.616/2014 of Police Station Fatehpur Beri, on behalf of his
wife and two minor sons, they being first to third respondents in this
appeal (collectively, the claimants).
2. The Motor Accident Claims Tribunal (the tribunal), after
accepting the case of the negligent driving of the above mentioned
vehicle to be the cause, awarded compensation computed at
Rs.73,11,200/- in favour of claimants and directed the insurance
company to pay with interest @ 9% per annum. The said award
includes Rs.1 lac each towards loss of love and affection and loss of
consortium, Rs.25,000/- towards funeral expenses and Rs.10,000/-
towards loss to estate, balance Rs.70,76,200/- being on account of loss
of dependency.
3. The insurer questions the computation of loss of dependency on
the ground the assumption in para 16 of the award that the income of
the deceased was Rs.54,000/- was incorrect. It is pointed out that the
income was derived on the basis of income tax return (ITR) for the
assessment year (AY) 2012-13, it being in the sum of Rs.3,27,850/-,
wrongly assumed by the tribunal to be on account of income from
business. It is submitted that the said ITR would show that the income
from business was only Rs.75,850/- while salary was Rs.2,52,000/-
which, put together, come to Rs.3,27,850/- and, as per the
submissions, the said return would indicate the income was
Rs.27,320.83 per month. As against this, the tribunal calculated
taking the income at Rs.54,000/- which was not supported by any
evidence, such assumption being not on the basis of future prospects
since that element to the extent of 30% was added later.
4. Per contra, the claimants argued through the counsel that while
the non-pecuniary damages awarded by the tribunal are inadequate,
the last salary drawn by the deceased is not truly reflected in the ITR
for AY 2012-13, in as much as, per the evidence of employer (PW-2),
the deceased was earning Rs.33,600/- per month w.e.f. 01.04.2014
(Ex.PW-2/A) which was to get reflected in the ITR in the subsequent
period, death having occurred before such ITR for subsequent period
could be submitted.
5. It does appear that the figure of Rs.54,000/- indicated in para 16
is without any basis. At the same time, however, it also does appear
that the last salary at Rs.33,600/- could not have been ignored. Taking
this into account, the last earnings would have to be computed by
adding the business income with the last salary drawn. The
submission of the insurer that the business income cannot be factored
in is not correct because the previous ITR do show such income to be
recurrent.
6. The business income in the last ITR filed during the lifetime of
the deceased was Rs.75,850/- which comes to Rs.6320/- per month. It
is not correct on the part of the insurer to argue that the conveyance
allowance, as reflected in the last salary slip, should be kept out. The
said allowance would inure to the benefit of the deceased and his
dependent family members as it would lead to corresponding savings.
Thus, the total last monthly earnings comes to (6320/- + 33,600/-)
Rs.39,920/- per month.
7. Having regard to the age of the deceased at the time of
occurrence, the future prospects to the extent of 30% are added. Thus,
the notional income comes to (39,920/- x 130/100) Rs.51,896/-. The
annual notional income would be (51,896/- x 12) Rs.6,22,752/-.
8. The death had occurred on 21.11.2014. The income tax liability
on the above calculated income for the corresponding period would
approximately be around Rs.22,000/-. The net annual income on
which loss of dependency can be worked out, thus, comes to
(6,22,572/- - 22,000/- ) Rs.6,00,572/-.
9. It is noted that when the accident claim was brought before the
Tribunal, the mother of the deceased was alive. She having later died
her name stood struck off. The fact remains that on the date the cause
of action arose there were four claimants. In this view, the deduction
on account of personal and living expenses would be to the extent one-
fourth. Thus, applying the multiplier of 14, the loss of dependency is
calculated as (6,00,752/- x 3/4 x 14) Rs.63,07,896/- rounded off to
Rs.63,08,000/-.
10. The submission of the claimants about inadequacy of non-
pecuniary damages is correct. Following the view taken in
MAC.APP.No.160/2015 MAC.APP.160/2015 Shriram General
Insurance Co Ltd v. Usha decided by this court on 05.05.2016, non-
pecuniary damages in the sum of Rs.1,50,000/- each towards loss of
love & affection and towards loss of consortium and Rs.50,000/- each
towards loss of estate and funeral expense are added. Hence, the total
compensation payable in the case comes to (63,08,000/- + 4,00,000/-)
Rs.67,08,000/-.
11. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the tribunal.
12. By order dated 27.04.2017 the entire awarded amount was
deposited with the Tribunal, out of which 60% was ordered to be
released to the claimants.
13. The tribunal shall re-calculate as per modified award, releasing
the balance in favour of the claimants and refunding the excess to the
appellant insurance company.
14. The appeal is allowed in above terms.
15. Pending applications also stand disposed of.
16. The statutory amount, if deposited, shall be refunded to the
appellant.
R.K.GAUBA, J.
JULY 19, 2017
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