Delhi High Court
Anita Punia & Ors vs National Insurance Co. Ltd. & Ors on 28 November, 2017
$~R-576 & 577
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th November, 2017
+ MAC. APPEAL No. 919/2012
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate.
versus
ANITA PUNIA & ORS .....Respondents
Through: Mr. Navneet Goyal, Advocate for
R-1 to 4.
+ MAC. APPEAL No. 50/2015
ANITA PUNIA & ORS ..... Appellants
Through: Mr. Navneet Goyal, Advocate.
versus
NATIONAL INSURANCE CO. LTD. & ORS .....Respondent
Through: Mr. Pankaj Seth, Advocate.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Naresh Punia, then aged 33 years, then employed as Assistant
Manager with Irkon International Limited, suffered injuries in a motor
vehicular accident that occurred on 05.10.2006, due to negligent
driving of motor vehicle described as Tata Safari bearing registration
No. JK-02S-0066, which was duly insured against third party risk with
National Insurance Company Limited (the insurer) for the period in
question and died in the consequence. His wife and three other
members of the family dependent upon him (collectively, the
claimants) instituted accident claim case (Suit No. 175/11) on
06.02.2007. The Tribunal held inquiry and, by judgment dated
21.03.2012, awarded compensation in the total sum of Rs. 34,72,736/-,
this inclusive of Rs. 34,52,736/- towards loss of dependency and
Rs.5000/- each under the heads of funeral expenses, loss of estate and
loss of love and affection and loss of consortium. The liability to pay
the compensation was fastened against the insurer with interest at the
rate of 7.5% per annum having been added.
2. The insurer had pleaded breach of terms and conditions of the
insurance policy on the ground that the vehicle had been insured as a
private vehicle but used for hire. The plea was accepted and in the
consequence, the insurer was granted recovery rights against Darshan
Kumar (owner of the offending vehicle), a respondent in these
appeals.
3. The insurer by its appeal (MAC. Appeal No.919/2012) has
questioned the award on the ground that the inclusion of element of
future prospects of increase in income to the extent of 50% was
wrongly added in the calculation of loss of dependency and that
instead of being asked to pay, it should have been exonerated.
4. The claimants, on the other hand, by their appeal (MAC. Appeal
No.50/2015) have questioned the calculation on the ground that the
Tribunal fell into error by taking Rs.71,932/- as the income tax
liability, which is excessive deduction. The claimants also seek
enhanced non-pecuniary damages and interest.
5. Following the ruling of a Constitution Bench of Supreme Court
rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance
Company Ltd. Vs. Pranay Sethi and Ors., the exception taken to the
element of future prospects by the insurer must be rejected.
6. There is merit in the submission of the claimants about the
income tax liability. It is clear from bare perusal of the impugned
judgment that the Tribunal has calculated the income tax on the basis
of notional income arrived at by factoring in the element of future
prospects which was inappropriate. Such liability is to be calculated
on the basis of gross income of Rs.2,39,772/- per annum actually
earned. The income tax liability by such calculation is to the tune of
Rs.23,000/-.
7. In view of the above, the loss of dependency is re-calculated as
[(2,39,772 - 23,000) X 150/100 X 3/4 X 16] Rs.39,01,896/- rounded
off to Rs. 39,02,000/-. Following the dispensation in Pranay Sethi
(supra), non-pecuniary damages are awarded in the sum of Rs.40,000/-
towards loss of consortium and Rs.15,000/- each towards loss of estate
and funeral expenses.
8. Thus, the total compensation comes to (39,02,000 + 40,000 +
15,000 + 15,000) Rs.39,72,000/- (Rupees Thirty Nine Lakhs and
Seventy Two Thousand Only). The award is modified accordingly.
9. 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.].
10. Since recovery rights were granted in favour of the insurer
protecting its rights, the plea for total exoneration is unacceptable.
The same is rejected.
11. By order dated 27.08.2012 in MAC. Appeal No.919/2012, the
insurer had been directed to deposit the entire awarded amount with
UCO Bank, Delhi High Court Branch and out of such deposit, 60%
was permitted to be released to the claimants. The balance lying in
deposit shall also now be released to the claimants in terms of the
judgment of the Tribunal. Since the award has been modified and
increased, the insurer shall be obliged to deposit the requisite amount
with the Tribunal within 30 days making it available to be released to
the claimants.
12. The statutory deposit made by the insurer shall be refunded
upon proof being shown of the award having been satisfied.
13. Both the appeals stand disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 28, 2017
srb
