Delhi High Court
Pravesh Kumar Kharbanda & Ors vs Raj Singh & Ors. on 1 November, 2017
$~R-387
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 1st November, 2017
+ MAC APPEAL 792/2011
PRAVESH KUMAR KHARBANDA & ORS ..... Appellants
Through:
versus
RAJ SINGH & ORS. ..... Respondents
Through: Mr. A.K. Soni, Advocate for R-
3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Asha Kharbanda, suffered injuries in a motor vehicular accident
that occurred on 24.11.2007 due to the negligent driving of truck
bearing registration no.DL-1GB-4525 by the first respondent (driver),
the said vehicle being registered in the name of the second respondent
(owner) and concededly insured against third party risk with the third
respondent (insurer) for the period in question. She remained under
treatment but succumbed to the injuries on 10.06.2008.
2. On 20.10.2008, the husband and two sons of the victim
instituted accident claim case (MACT suit no. 633/2008) impleading
the driver, owner and insurer of the said truck as party respondents,
they being respondents in the same order in the appeal as well. On
the basis of the inquiry held, the Motor Accident Claims Tribunal
(Tribunal), by judgment dated 20.05.2011, upheld the case holding
the truck driver / first respondent guilty of negligence. The tribunal
awarded compensation in the total sum of Rs.11,43,205/- adding the
interest at the rate of 7.5% p.a. The insurer had taken the plea of
breach of the terms and conditions of the insurance policy on the
ground that the driver was not holding a valid licence on the relevant
date. This fact was held to be proved and thus, the insurer which was
called upon to pay the compensation was also granted recovery rights
against the driver and owner (i.e. the first and second respondents
respectively).
3. The appeal at hand was filed seeking enhancement of
compensation. It was put in the list of 'Regulars', to come up on its
own turn as per order dated 19.02.2016. When it is taken up for
hearing, there is no appearance on behalf of the appellants or second
respondent. The matter has been heard with the assistance of the
learned counsel representing the third respondent and by perusal of the
record.
4. The tribunal has found that the victim was 47 years old on the
date of cause of action. It held that she was earning livelihood by
running a boutique from her residence. In order to substantiate the
said engagement of the deceased in gainful work, the claimants had
proved the Income Tax Returns (ITRs) for several years (Ex. PW1/19
to 24). The last of the said ITRs (Ex. PW1/24) was filed on
28.03.2008 and is for the assessment year (AY) 2007-2008 which
would correspond to the financial year 2006-2007. Since the said
financial year would close on 31.03.2007, the accident having
occurred in November 2007, there is no reason why the income
declared in the said ITR should have been ignored and the income for
the preceding assessment year 2006-2007 (which would correspond to
financial year 2005-2006) should be adopted.
5. The tribunal, it is noted, has also committed another error by
making a deduction of 45% of the annual income towards overhead
expenses. It had to be borne in mind that the income was declared by
the individual after taking into account the profit and loss account
which would also cover the expenditure incurred. Therefore, there
was no logical reason for such deduction. The calculation of loss of
dependency would thus need to be made accepting the last declared
annual income of Rs.1,36,110/-.
6. The deceased was a self-employed person and having regard to
the ruling of the Constitution Bench of the Supreme Court rendered on
31.10.2017 in SLP (C) 25590/2014, National Insurance Company Ltd.
Vs. Pranay Sethi and Ors, 25% has to be added towards future
prospects, regard being had to the fact that the deceased was 47 years
old at the relevant point of time. The addition of 50% by the tribunal
on this account, thus, is found to be erroneous.
7. Deducting one-third towards personal and living expenses and
applying the multiplier of 13, the loss of dependency is re-calculated
as [Rs.1,36,110/- x 125 / 100 x 2/3 x 13] Rs.14,74,525/-. Since the
tribunal had reached the figure of Rs.6,89,020/- under the head of loss
of dependency, the award would need to be enhanced by
[Rs.14,74,525/- (-) Rs.6,89,020/-] Rs.7,85,505/- (Rupees Seven Lakh,
Eighty Five thousand, five hundred and five only).
8. It is noted that in the memo of appeal, the claimants have also
taken exception to the amount of Rs.4,40,000/- only being awarded
towards medical expenses. The contention is that the expenditure was
to the tune of Rs.6,69,414/-. Since the tribunal has gone by the
documents properly proved, there is no justification for any increase
under this head. The claim in the appeal for award to also be granted
under the head of pain and suffering cannot be accepted as the case
was brought as a fatal accident claim.
9. The total compensation awarded by the tribunal is, thus,
increased to [Rs.11,43,205/- + Rs.7,85,505/-] Rs.19,28,710/-, rounded
off to Rs.19,29,000/- (Rupees Nineteen Lakh and twenty nine
thousand only).
10. Following the consistent view taken by this Court, the rate of
interest 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.]
11. It is directed that the entire enhanced portion of the award with
corresponding interest shall be paid to the first appellant (husband) in
the form of interest bearing fixed deposit receipt taken out from a
nationalized bank initially for a period of five years with provision for
auto renewal with right to draw periodic interest. The insurer is
directed to satisfy the enhanced award by requisite deposit with the
tribunal within 30 days making it available to be released to the
claimant. It is made clear that this does not disturb the recovery rights
granted to the insurer.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 01, 2017
yg
