Delhi High Court
M/S Iffco Tokio General Insurance ... vs Sushila Yadav & Ors on 27 July, 2017
$~18 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th July, 2017
+ MAC.APP. 726/2015 and CM 20235/2015
M/S IFFCO TOKIO GENERAL INSURANCE
CO LTD ..... Appellant
Through: Mr. Harsh Vardhan, Advocate
versus
SUSHILA YADAV & ORS ..... Respondents
Through: Mr. Partap Singh, Advocate
+ MAC.APP. 66/2016 and CM Nos.2558/2016 and 2559/2016
SUSHILA YADAV & ORS ..... Appellants
Through: Mr. Partap Singh, Advocate
versus
CHETAN PARKASH KAUSHIK & ORS ..... Respondents
Through: Mr. Harsh Vardhan, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Sube Singh was employed in Delhi Police, then in the rank of
Head Constable. He was moving on his motor cycle bearing no.DL-
4SBJ-0705 (the motor cycle) on 17.01.2013 upwards the Moti Bagh
Flyover, having come from the side of Ring Road. It was around
11.40 a.m. when his motor cycle came to be involved in a motor
vehicular accident resulting in his death. The local police registered
FIR 16/13 in police station R.K. Puram for offences under Section
279, 338 and 304A IPC. In the course of the said investigation,
evidence was collected to the effect that the accident had been caused
by a car bearing registration no.HR-55R-4004 registered in the name
of Bimla Devi (seventh respondent in MACA 726/2015) and that it
was driven by Chetan Parkash Kaushik, the husband of the second
respondent, he being the father of third to fifth respondents and son of
the sixth respondent (collectively, the legal heirs of Chetan Prakash
Kaushik).
2. The widow and children of the deceased, they being seventh to
nineth respondents in MACA 726/2015 (hereinafter referred to as "the
claimants"), they also having filed MACA 66/2016, instituted accident
claim case (suit no.201/14) on the contention that the accident had
been caused due to the negligent driving of the car by the said Chetan
Parkash Kaushik. The claimants had also impleeaded Iffco Tokio
General Insurance Co. Ltd., the appellant in MACA 726/15, also a
respondent in connected MACA 66/2016, because it had concededly
issued an insurance policy covering third party risk in respect of the
car.
3. The claim case was contested by the registered owner of the car,
and Chetan Parkash Kaushik, by their written statement pleading that
there was no involvement of the car in the accident.
4. The Motor Accident Claims Tribunal (Tribunal), after inquiry,
by judgment dated 23.05.2015, upheld the case of the claimants about
death having occurred due to rash driving of the car, this on the basis
of evidence of Sarvan Kumar (PW-2), presented as an eye witness, he
being a LIC agent who was statedly moving on the same road at the
same point of time and having seen the accident per chance, he also
having been examined as a witness in the corresponding police case.
The Tribunal awarded compensation in the total sum of Rs.35,79,000/-
with interest at the rate of 9%, this inclusive of the loss of dependency
calculated as Rs.33,44,000/- with awards of Rs.1 Lakh each towards
loss of love and affection and loss of consortium and Rs.10,000/-
towards loss of estate and Rs.25,000/- towards funeral expenses.
5. The insurer, on which the liability has been fastened, presses its
appeal (MACA 726/15) on the contention that the evidence of PW-2
and the contention of the claimants about involvement of the car
should not have been believed since the witness could not have
conceivably been present or seen the accident and that the story has
been created falsely. The insurer also questions the computation of
the award on the ground that the element of future prospects could not
have been added.
6. Per contra, the claimants, by their appeal (MACA 66/2016),
contend that the tribunal has correctly appreciated the evidence about
the involvement and negligence of the car driver and, therefore, plead
that this court should not interfere in the same. It is also submitted
that the tribunal did not compute the loss of dependency properly as
certain allowances were unjustly kept out. It is further the grievance
of the claimant that the non-pecuniary damages as awarded are
inadequate.
7. Having heard both sides at length and having gone through the
Tribunal's record, this court is of the view that the evidence of PW-2
has been properly appreciated and accepted for just and sufficient
reasons. It may be that PW-2 had not been examined by the police
immediately after the occurrence. It does appear that he approached
the police after some time gap. But then this by itself should not mean
that he is to be disbelieved. It only means that his evidence is required
to be subjected to a little closer scrutiny. The witness stood the test of
cross-examination. It is pertinent to note here that inspite of
opportunity, Chetan Parksh Kaushik did not enter the witness box. It
does appear that he died midway the inquiry before the tribunal on
30.10.2014. But, by that time the claimants had already concluded
their evidence and the case had reached the stage of respondent's
evidence. There was no endeavour on the part of any of the contesting
respondents to examine Chetan Parkash Kaushik as a witness. The
reluctance on his part to enter the witness box, and his refusal to join
test identification parade during police investigation as is mentioned in
the chargesheet, copy of which has been submitted, are sufficient
reasons why the defence theory must be rejected.
8. Therefore, this court declines to interfere in the finding about
the involvement or negligence on the part of the driver of the car.
9. The counsel for the claimants pointed out that though the
tribunal had taken into account the benefit of Modified Assured Career
Progression Scheme (MACP) and had concluded (in para 38 of the
impugned judgment) that the monthly income was about Rs.42,000/-,
it excluded certain permanent allowances without any justification.
10. This court accepts the said contention. The allowances in the
nature of transport allowance, washing allowance, metropolitan
allowance, ration money and conveyance allowances were regular and
to the benefit of his family. They would result in corresponding
savings and, thus, the denial would be a net loss. Therefore, the loss
of dependency has to be reworked on the basis of conclusion that the
last income drawn was Rs.42,000/-.
11. The deceased was 53 years old when the death occurred. The
Tribunal correctly applied the multiplier of 11. Having regard to the
age and following view taken in United India Insurance Co. Ltd. Vs.
Kamla & Ors., MACA 548/2013, decided on 28.03.2016, the future
prospects of increase to the extent of 15% will have to be factored in.
Thus, the notional income would be (Rs.42,000/- x 115/100)
Rs.48,300/-. This would mean the annual income would be
(Rs.48,300/- x 12) Rs.5,79,600/-. Having regard to the prevailing
rates of tax during the relevant period, the income tax liability would
be Rs.30,000/-. This means the net income was Rs.5,49,600/-. Since
there were three dependents, one-third is deducted and the annual
dependency loss comes to (Rs.5,49,600/- x 2/3) Rs.3,66,400/-. On the
multiplier of 11, the total loss of dependency is computed as
(Rs.3,66,400/- x 11) Rs.40,30,400/- rounded off to Rs.40,31,000/-.
12. The death had occurred in January 2013. Following the view
taken in Shriram General Insurance Company Ltd. Vs. Usha & Ors.,
MACA 160/2015 decided on 05.05.2016, non-pecuniary damages in
the sum of Rs.1,50,000/- each towards loss of love and affection and
loss of consortium and Rs.50,000/- each towards loss of estate and
funeral expenses are added. Thus, the total compensation is computed
as (Rs.40,31,000/- + Rs.1,50,000/- + Rs.1,50,000/- + Rs.50,000/- +
Rs.50,000/-) Rs.44,31,000/-. The award is modified accordingly.
Needless to add, it shall carry interest as levied by the Tribunal.
13. The insurer had been directed by order dated 30.09.2015 in
MACA 726/2015 to deposit the entire awarded amount with the
Registrar General within the period specified. Since the award has
been increased, the amount deposited shall be released to the
claimants forthwith. The insurance company is directed to satisfy the
enhanced portion of the award by requisite deposit with the Tribunal
within 30 days from today making it available to be released to the
claimants.
14. The statutory deposit made by the insurer shall be refunded
after the award has been fully satisfied.
15. The appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
JULY 27, 2017
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