Delhi High Court
Oriental Insurance Co Ltd vs Smt Gudiya Devi & Ors on 8 November, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 8th November, 2017
+ MAC.APP. 14/2012 & CM No. 40262/2017(for substitution of
LRs)
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
SMT GUDIYA DEVI & ORS ..... Respondents
Through: Mr. Manish Maini, Adv. for R1
to R6.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ashish Kumar Jha, aged 37 years, working as a salesman with
M/s Nulex Automation Technology Pvt. Ltd., sustained injuries
that proved fatal in a motor vehicular accident that occurred on
11.03.2005 due to negligent driving of a motor vehicle
described as a truck bearing registration no. HR-64-0266, it
admittedly insured against third party risk with the appellant
(insurer) for the period in question. The accident claim case
(suit no. 872/2009) was instituted on 13.05.2005 by his wife and
other members of the family dependant on him including his
parents. The tribunal had held inquiry and, by judgment dated
25.11.2011, granted compensation in the total sum of Rs.
19,85,000/- fastening the liability on the insurer to pay with
rate of interest at 7.5% per annum, the amount being inclusive
of Rs. 18,90,000/- towards loss of dependency. The insurer is
in appeal questioning calculation of the loss of dependency.
2. During the pendency of appeal, the fifth and sixth respondents
(claimants) passed away, they being parents of the deceased
Ashish Kumar Jha. An application was moved under Order
XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC) by the
appellant, seeking to substitute the said deceased claimants with
their three other legal heirs in addition to those already on
board, they being Manoj Kumar Jha, Amol Kumar Jha and
Rekha Devi. The learned counsel for the claimants concedes to
this application, submitting that the said three persons are the
other children of the deceased respondents. He submitted that
he also represents the said newly added respondents. The
prayer in the application is, thus, allowed and amended memo
of parties with substitution of the legal heirs is allowed to be
taken on record.
3. The claimants had submitted before the tribunal that the
deceased was earning, besides salary of Rs. 4,500/- per month,
commission in the amount of Rs. 5,500/- per month from the
employment. The claimants concede that no proof of such
earnings from commission were mustered or brought before the
tribunal. The claimants are not able to prove any such
additional income even at this stage. The claimants had proved
income tax returns (ITRs) for two consecutive assessment years
(AY) including AY 2003-04 (Ex-PW1/4) and AY 2004-05 (Ex-
PW1/6), the income declared wherein is Rs.65,500/- and
Rs.66,000/- per annum respectively. In these circumstances, the
loss of dependency must be worked out on the basis of income
declared in the said ITRs.
4. The evidence clearly shows that the deceased was a permanent
and regular employee of the private company. Thus, following
the ruling of the Constitution Bench of Supreme Court decided
on 30.10.2017 in SLP(C) No. 25590/2015 National Insurance
Company Limited Vs. Pranay Sethi & Ors., the element of
future prospects of increase in income to the extent of 50%
(fifty per cent) are added and the loss of dependency is re-
computed as (66000x150/100x3/4x15) Rs. 11,13,750/- rounded
off to Rs. 11,14,000/-. Since the loss of dependency was
calculated by the tribunal in the sum of Rs. 18,90,000/-, the total
compensation would need to be reduced by (1890000-1114000)
Rs. 7,76,000/-. The award is thus, reduced to (1985000-
776000) Rs. 12,09,000/-(Rupees Twelve Lacs and Nine
Thousand Only).
5. 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.]
6. The award is modified accordingly.
7. By order dated 05.01.2012, the insurance company had been
directed to deposit seventy five (75%) of the awarded amount
along with proportionate interest with Registrar General within
the specified period. By subsequent order dated 06.08.2012,
60% of the awarded amount was released to the claimants.
Since fifth and sixth respondents have died, the legal
representatives now added through the application under Order
XXII Rule 4 of CPC being the siblings of the deceased, it is
deemed proper that the entire balance share of the fifth and sixth
respondents should go to the first claimant Gudiya Devi
(widow). Ordered accordingly.
8. The insurance company will deposit balance of its liability in
terms of the modification ordered above, if there is any
deficiency with the tribunal within 30 days, making it available
to be released to the claimants. Conversely, if excess has been
paid, the claimants will be liable to reimburse the same. The
registry shall calculate the amount payable to the claimants.
9. The appeal is thus, disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 8, 2017
umang
