Delhi High Court
Bharti Axa Gen.Ins.Co.Ltd. vs Anuradha & Ors on 7 November, 2017
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 7th November, 2017
+ MAC.APP. 1087/2016
BHARTI AXA GEN.INS.CO.LTD. ..... Appellants
Through: Mr. S.N. Parashar & Mr. Pankaj
Kumari, Advs.
versus
ANURADHA & ORS ..... Respondents
Through: None.
+ MAC.APP. 537/2017
ANURADHA & ORS ..... Appellants
Through: None.
versus
BHARTI AXA GEN INS. CO. LTD & ANR ..... Respondents
Through: Mr. S.N. Parashar & Mr. Pankaj
Kumari, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Narendra Kumar, aged 42 years, earning his livelihood from private
business, suffered injuries in motor vehicular accident that took
place on 11.04.2014 on account of rash driving of motor cycle
bearing registration no. DL-9S-AH-7049 and died in the
consequence. His wife and other members of the family dependent
on him, they being appellants in MAC APP. 537/2017 (collectively,
the claimants) instituted on 05.06.2014 accident claim case MACP
No. 206/DAR/2014 in the wake of Detailed Accident Report (DAR)
submitted by the police pursuant to investigation into the
corresponding criminal case. In the said proceedings, the seventh
respondent was impleaded as a party on the averments that he was
the driver cum owner of the motor cycle. In addition, Bharti Axa
General Insurance Company Limited (insurer), appellant in MAC
APP 1087/2016, was also impleaded as a party, it concededly
having issued an insurance policy, covering third party risk in
respect of the motor cycle for the period in question.
2. The tribunal held inquiry and, by judgment dated 04.08.2016,
returned findings, accepting the claim case that the accident had
been caused resulting in death due to the negligent driving of motor
cycle by the seventh respondent (driver cum owner of the offending
vehicle). The tribunal computed compensation on the total sum of
Rs.32,68,858/-, calculating it thus:-
S.No Head Amount
1. Loss of Rs. 26,43,858/-
dependency
2. Loss of love and Rs.3,00,000/-
affection to
children
(1,00,000 x 3)
3. Loss of Rs.1,00,000/-
consortium
4. For funeral Rs. 25,000/-
expenses
5. Loss of estate Rs. 1,00,000/-
6. Loss of love and Rs. 1,00,000/-
affection towards
parent
(50,000 x 2)
7. TOTAL Rs. 32,68,858
8. The liability to pay the compensation with interest levied at 10%
per annum was fastened against the insurer.
9. While the insurer by its appeal 1087/2016 questions the award on
the ground that non-pecuniary heads of damages granted by the
tribunal and the rate of interest levied are excessive, it also raises
the issue that the document purporting to be the insurance policy
cover had been obtained by the seventh respondent by playing fraud
on the appellant insurance company, such document being
antedated and based on suppression of material facts from the
insurance company. The appellant submits that these facts have
come to light later, this giving rise to further cause of action for the
case to be remitted to the tribunal for inquiry into the issue of the
insurance policy and liability of insurer to indemnify.
10. Per contra the claimants have submitted that the tribunal fell into
error by failing to take into account the factor of future prospects of
increase in the income, for which sufficient proof had been
established by submitting income tax returns (ITRs) filed by the
deceased for the assessment years (AYs) 2011-12, 2012-13, 2013-
14 (collectively, Ex-PW1/1) which clearly show progressive rise in
income.
11. The learned counsel on both sides have been heard and the record
has been perused. The contention of the claimants with regard to the
calculation of loss of dependency is found to be correct. The ITRs
for the three assessment years do show progressive rise in income,
they being from Rs.2,10,123/- for AY 2011-12 to Rs.2,31,503 for
AY 2012-13 and finally to Rs.2,51,800/- for AY 2013-14. Since the
deceased falls in the category of self employed persons, following
the ruling of the Constitution Bench of the Supreme Court decided
on 31.10.2017 in National Insurance Company Limited Vs. Pranay
Sethi & Ors., the element of future prospects of increase to the
extent of 25% must be added to calculate the loss of dependency.
12. It is noted that the tribunal had applied the multiplier of 14 and
made deduction on account of personal and living expenses to the
extent of one-fourth. It is noted that in the last said assessment year,
the deceased had declared his tax liability as Rs.1,545/- which will
have to be deducted.
13. Thus, the loss of dependency is re-calculated as (2,51,800 -1545 x
125/100 x 3/4 x 14) Rs.32,84,596.88/- rounded off to Rs.
32,85,000/-.
14. Given the ruling in Pranay Sethi (supra), the non-pecuniary
damages only to the extent of Rs.40,000/- towards loss of
consortium and Rs. 15,000/- each on account of loss of estate and
funeral expenses may be added. Thus, the total compensation in the
case comes to (3285000 + 40000+15000+15000) Rs. 33,55,000/-
(Rupees Thirty three lakh and fifty five thousand only). The award
is increased accordingly.
15. The tribunal has not given any special reasons for levy of interest at
10% (ten percent) per annum which is higher than the ordinary.
Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine percent) 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.]
16. It is noted that the tribunal had apportioned the award by specifying
the amounts falling to the share of each claimant. While the said
amounts awarded by the tribunal shall be released according to the
apportionment as directed by the tribunal, it is directed that the
entire enhanced portion of the award with corresponding interest
shall fall to the share of the first claimant Anuradha (widow).
17. On the issue of the insurance policy and fraud, the learned counsel
for the seventh respondent (driver cum owner of the offending
vehicle) fairly conceded that the matter may be remitted for a
limited inquiry to the tribunal. She also submitted that the burden
of proof as to denial of its obligation must be discharged by the
insurer. Her contention to this effect is accepted.
18. Hence the issue is remitted to the tribunal for inquiry in which the
insurer will be called upon to lead evidence first. Thereafter, the
seventh respondent shall be given the opportunity to lead evidence
in rebuttal. The tribunal is expected to hold expeditious inquiry into
the matter and reach a fresh adjudication at an early date. It shall
issue requisite directions on the basis of the conclusions reached
thereafter by granting or declining recovery rights, as the case may
be. For such purposes, the insurer (appellant) and driver cum owner
(seventh respondent) shall appear before the tribunal on 7 th
December, 2017.
19. The insurer had deposited the awarded amount with the tribunal in
terms of order dated 21.12.2016 in MACA APP. 1087/2016. By
order dated 10.07.2017, 50% of the said deposited amount was
released to the claimants, the balance kept in fixed deposit receipt.
The balance shall now also be released to the claimants in terms of
the judgment of the tribunal, as modified above. Since the
compensation has been increased, the insurer is obliged to deposit
the remainder of its liability towards the claimants within 30 days
and the same may be released to the claimants.
20. The statutory amount deposited by the insurer shall be refunded.
21. Both appeals stand disposed of in above terms.
22. Dasti.
R.K.GAUBA, J.
NOVEMBER 7, 2017
umang
