Delhi High Court
Kanti Devi & Ors. vs Sunil Kumar & Ors. on 16 November, 2017
$~R-506 & 507
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th November, 2017
+ MAC.APP. 549/2012
IFFCO TOKIO GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv.
versus
KANTI DEVI & ORS. ..... Respondent
Through: Mr. Jaswinder Singh, Adv. for
UOI.
+ MAC.APP. 30/2013
KANTI DEVI & ORS. ..... Appellants
Through: None.
versus
SUNIL KUMAR & ORS. ..... Respondents
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv. for
R-4.
Mr. Jaswinder Singh, Adv. for
UOI.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Satish Chand Gupta, aged 50 years, earning his livelihood from
private business, suffered injuries in a motor vehicular accident that
had occurred on 09.12.2006 due to negligence on the part of the driver
of truck bearing registration no. BA 06C 080169A and died in the
consequence. His wife and five other members of the family
dependent on him (collectively, the claimants), they now being
appellants in MAC Appeal No. 30/2013 and first to sixth respondents
in MAC Appeal No. 549/2012, instituted accident claim case (suit no.
503/2011) on 11.04.2007 seeking compensation. The tribunal held
inquiry and, by judgment dated 30.01.2012, accepted the case for
compensation holding Sunil Kumar, the driver of the said truck (a
respondent in these appeals) responsible for the accident. It awarded a
total compensation of Rs. 6,95,200/- and fastened the liability on
IFFCO Tokio General Insurance Company Ltd. (insurer), appellant in
MAC Appeal No. 549/2010 and respondent in MAC Appeal 30/2013,
to pay with interest @ 7.5% per annum. The compensation was
calculated thus:-
S.No. Heads Compensation
1. Loss of dependency Rs. 6,55,200/-
2. Funeral expenses Rs. 10,000/-
3. Loss of consortium Rs. 10,000/-
4. Loss of estate Rs. 10,000/-
5. Loss of love and affection Rs. 10,000/-
Total Rs. 6,95,200/-
2. The insurer while contesting the said claim case had taken a
plea that it could not be held liable to indemnify since the deceased
was travelling as a gratuitous passenger, his risk not being covered by
the insurance policy. This plea was rejected by the tribunal with
reference to admission of witness (R4W1) examined by the insurance
company to the effect that such exclusion was not mentioned in the
insurance document.
3. The claimants by their appeal submitted that the loss of
dependency has not been properly determined and that the award is
inadequate. Per contra, the insurance company argues that the
element of future prospects of increase was wrongly added to the
extent of 50%. The insurance company also raises a grievance that it
should have been exonerated, pressing it on the ground that the vehicle
was being unauthorizedly used for hire purposes.
4. Both the appeals were put in the list of 'regulars', to come up on
their own turn. When they are taken up on their own turn, there is no
appearance on behalf of the claimants.
5. The prime contention raised in the appeal of the claimants is
that the income was wrongly taken notionally on the basis of
minimum wages. It has been mentioned in the appeal that the
claimants had proved by income tax return (ITR) for the assessment
year 2004-05 (Ex.PW-1/3) which was wrongly rejected. Appraisal of
the evidence led before the tribunal is found to be correct. The
document (Ex.PW-1/3) proved by the claimants do reveal an income
in the sum of Rs. 80,000/- which had been declared by the deceased
during his lifetime on 18.03.2005 for AY 2004-05. This income could
not be ignored. However, while taking the income of Rs. 80,000/-
mentioned in the said return, the income tax liability to the extent of
Rs.1542/- deserves to be deducted.
6. 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., the
element of future prospects of increase to the extent of 25% deserves
to be added.
7. Thus, loss of dependency is recomputed as (80,000 -1542 x 125
÷100 x 3 ÷4 x 13) Rs. 9,56,206.875, rounded off to Rs. 9,57,000/-.
8. The non-pecuniary awards also need to be brought in accord
with the dispensation in Pranay Sethi (supra). Thus, in their lieu, Rs.
40,000/- towards loss of consortium and Rs. 15,000/- each towards
loss to estate and funeral expenses are added.
9. Therefore, the total compensation comes to (9,57,000 + 40,000
+ 15,000 + 15,000) Rs. 10,27,000/- (Rupees Ten Lakhs and Twenty
Seven Thousand only). The award is modified accordingly.
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. Having regard to the apportionment granted by the tribunal, it is
directed that the entire enhanced portion of the award with
corresponding effect of increase in the rate of interest shall fall
exclusively to the share of Kanti Devi (widow), it to be released in the
form of interest bearing fixed deposit account taken out from a
nationalized bank in her name for a period of seven years with right to
draw periodic interest.
12. The plea of exoneration of the insurer cannot be accepted as the
argument about the use of the vehicle for hire purposes is not founded
on any evidence.
13. By order dated 16.05.2012 in MAC Appeal no.549/2012, the
insurance company had been directed to deposit the entire awarded
amount with upto date interest with UCO Bank. The amount thus
deposited was directed to be put in interest bearing fixed deposit
account. The said deposited amount shall now be released to the
claimants in terms of the judgment of the tribunal. The insurance
company will be obliged to deposit the enhanced amount in terms of
the modification ordered above, with the tribunal within thirty days,
making it available to be released to the first claimant (Kanti Devi).
14. The statutory amount shall be refunded only upon proof of the
satisfaction of the award being furnished.
R.K.GAUBA, J.
NOVEMBER 16, 2017
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