Delhi High Court
New India Assurance Co Ltd vs Ragini Chaudhary & Ors on 23 November, 2017
$~R-550 & 551
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23nd November, 2017
+ MAC.APP.780/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Priyadarsi Acharya, Advocate
versus
RAGINI CHAUDHARY & ORS ....Respondents
Through: None.
+ MAC.APP.996/2012
RAGINI CHAUDHARY & ANR ..... Appellants
Through: None.
versus
NEW INDIA ASSURANCE CO LTD & ORS ....Respondents
Through: Mr. Priyadarsi Acharya, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ranjit Kumar Chaudhary, then aged 33 years, suffered injuries
in a motor vehicular accident that occurred on 17.10.2004, due to
negligent driving of motor vehicle described as truck bearing
registration No. HR-38J-9901 and died in the consequence. His wife
and minor son (collectively, the claimants) instituted accident claim
case (MACT Suit No. 913/08) on 30.08.2005, alleging that the
accident had occurred due to negligence on the part of Rahishuddin
(the driver). The Tribunal held inquiry and, by judgment dated
20.04.2012, accepted the said case holding the said driver responsible.
It was found that the truck was insured against third party risk with
New India Assurance Co. Ltd. (the insurer) for the period in question
at the instance of its owner Arshad Ali. Holding the driver and the
owner jointly and severally liable, the insurer was called upon to pay
the compensation which was determined in the sum of Rs.42,49,000/-,
it inclusive of Rs.42,24,000/- towards loss of dependency, Rs.5000/-
towards funeral expenses and Rs.10,000/- each for love and affection
and under the head of loss of estate. The Tribunal also levied interest
at the rate of 7.5% per annum.
2. The insurer, by the appeal at hand, has questioned the
calculation of loss of dependency on the ground that the Tribunal fell
into error by accepting the word of claimant Ragini Chaudhary (PW-
1) about the income of the deceased being in the sum of Rs.22,000/-
per month. Per contra, the claimants by their appeal submitted that
the rate of interest should have been awarded to the extent of 12% per
annum and deduction on account of personal expenses should have
been made up to 1/4th only.
3. Both the appeals were put in the list of "Regulars" to come up
in their own turn by order dated 25.01.2016. When they are called out
for hearing, there is no appearance on behalf of the claimants. The
counsel for the insurer has been heard and, with his assistance, the
record has been perused.
4. It does appear that the deceased was not in a regular
employment but his widow (PW-1) proved by her evidence (PW-1)
that he was a well qualified person holding a degree of Bachelor of
Chemical Engineering besides diploma certificates in Software
Programming and Financial Management. He was earning his
livelihood as a freelance computer software programmer. The
testimony of Pradeep Kumar Tyagi (PW-2), Arun Kumar Panikar
(PW-3) and Santosh Rajput (PW-4) bring home this fact beyond any
doubts, corroborating the deposition of PW-1. All the said witnesses
also proved they having engaged the deceased at one point of time or
the other in job work for remuneration, the services used being that of
a software programmer. The evidence of the widow also proved that
the deceased was leading a life with all modern amenities including a
motor car at his disposal, having arranged the education of his child in
a reputed school of Ghaziabad. He was maintaining bank accounts
and also using credit cards for day-to-day expenses. The details of
expenditure narrated by PW-1 itself justify the view taken by the
Tribunal in accepting the word of PW-1 about the income being
Rs.22,000/- per month.
5. It is, however, noted that the Tribunal added the element of
future prospects to the extent of 50%. This will have to be reduced
marginally to the extent of 40% in view of the ruling of the Supreme
Court in SLP (C) 25590/2014, National Insurance Company Ltd. Vs.
Pranay Sethi and Ors.
6. The contention of the claimants in their appeal that deduction be
made on account of personal and living expenses to the extent of 1/4 th,
however, cannot be accepted. The deduction to the extent of 1/3 rd
made by the Tribunal is in accord with the ruling in Sarla Verma &
Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. At
the same time, the income tax liability will have to be worked out and
discounted from the income. Going by the annual income of
Rs.(22,000/- X 12) Rs. 2,64,000/- income tax liability is taken as
Rs.30,000/- approximately.
7. On the net income of Rs.(2,64,000 - 30,000) Rs.2,34,000/-, the
loss of dependency is re-computed as (2,34,000/- X 140/100 X 2/3 X
16) Rs.34,94,400/- rounded off to Rs.34,95,000/-.
8. In lieu of the non-pecuniary damages awarded by the Tribunal
following the dispensation in Pranay Sethi (supra), the amount of
Rs.40,000/- towards loss of consortium and Rs.15,000/- each towards
loss of estate and funeral expenses are added.
9. Thus, the total compensation comes to Rs. (34,95,000 + 40,000
+ 15,000 + 15,000) Rs.35,65,000/- (Rupees Thirty Five Lakhs and
Sixty Five Thousand Only). The award is modified accordingly.
10. Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine per cent) 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. By order dated 25.07.2012 (in MAC. Appeal No. 780/2012), the
insurance company had been directed to deposit the entire awarded
amount in terms of the impugned judgment. By orders dated
25.07.2012 and 07.09.2012, 50% of such amount was permitted to be
released to the claimants. The registry shall now calculate the balance
amount payable to the claimants in terms of the modification ordered
above and release the same to the claimants refunding the excess to
the insurance company. If there is any deficiency in deposit, the
insurance company will be liable to make it good by requisite deposit
with the Tribunal within 30 days.
12. The statutory amount shall be refunded.
13. The appeals stand disposed of accordingly.
R.K.GAUBA, J.
NOVEMBER 23, 2017
srb
