Delhi High Court
Suman & Ors vs Madan Kumar & Ors on 30 October, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th October, 2017
+ MAC.APP. 633/2011
SUMAN & ORS ..... Appellants
Through: Ms. Aruna Mehta, Advocate
versus
MADAN KUMAR & ORS ..... Respondents
Through: Mr. Navneet Goyal, Adv. for R-2
Mr. Sameer Nandwani, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Trivendra Nath, aged about 36 years (born on 19.09.1973),
working as Assistant Design Engineer with SMS India Pvt. Ltd.,
suffered injuries in a motor vehicular accident that occurred on
19.08.2009 due to the negligent driving by the first respondent (driver)
of truck bearing registration no.HR-38C-7827 and died in the
consequence. The truck admittedly is registered in the name of the
second respondent (owner) and was concededly insured against third
party risk for the period in question with the third respondent (insurer).
2. On the accident claim case (suit no.349/2009) instituted on
14.09.2009 by the appellants (collectively, the claimants), they being
the wife, children and parents of the deceased, the Motor Accident
Claims Tribunal (Tribunal) held inquiry, and by judgment dated
24.12.2010, returned a finding that the accident and death had
occurred due to the negligent driving of the truck. The said finding
has attained finality as it was not challenged by any of the respondents
including the owner and insurer of the truck. The Tribunal determined
the compensation in the total sum of Rs.24,80,300/-, it being inclusive
of Rs.24,50,300/- towards loss of financial dependency, Rs.10,000/-
each on account of the loss of love and affection and loss of
consortium and Rs.5,000/- each due to loss to estate and funeral
expenses.
3. It appears that the insurer had raised the plea of the breach of
terms and conditions of the insurance policy on the question of the
driving licence of the first respondent. The tribunal accepting the said
plea, while directing the insurer to initially pay the compensation to
the claimants, granted it recovery rights.
4. Two appeals came to be preferred including one at hand by the
claimants seeking enhancement of compensation, and the other (MAC
285/2011), by the owner questioning the grant of the recovery rights in
favour of the insurer, primarily contending that no opportunity to lead
evidence in rebuttal had been given by the tribunal on that subject. It
may be added here that the appeal at hand (MACA 633/2011) of the
claimants came up before the court for the first time on 15.07.2011.
Before this appeal could be considered, the other appeal (MACA
285/2011) of the owner had been decided by a learned single judge of
this court, by judgment dated 19.04.2011, thereby remitting the issue
of recovery rights to the tribunal for fresh adjudication.
5. The learned counsel for the insurer and owner who are
participating in the proceedings in the appeal at hand before this court
fairly concede that the said remit on the limited issue would not affect
the prayer of the claimants for enhanced compensation by the appeal
at hand. They, however, informed that the matter arising out of the
order of this court remanding the matter on the issue of recovery rights
is still pending before the tribunal.
6. In the appeal at hand, the prime contention of the claimants has
been that the loss of dependency calculated by the tribunal is
inadequate as the income of the deceased was under assessed. They
would take the responsibility for this adequacy on themselves, as
sufficient evidence was not adduced. It is for this reason that they
came up with an application (CM 12641/2011) invoking Order 41
Rule 27 of the Code of Civil Procedure, 1908 (CPC) seeking
opportunity to lead additional evidence. The said application was
partly allowed by order dated 06.05.2014. The claimants, however,
moved the Supreme Court by Civil Appeal 9023/2015 which was
allowed by judgment dated 28.10.2015 whereby the matter was
remanded to this court for all the documents produced by the
claimants to be taken on record and a decision thereafter to be
rendered on merits. In the wake of such directions, the claimants were
called upon to adduce additional evidence as had been sought by them
by the aforementioned application under Order 41 Rule 27 CPC.
Pursuant to the liberty given, they examined Hridayesh Upadhyay
(AW-1), Deputy General Manager (HR & Administration) of M/s.
SMS India Pvt. Ltd., Gurgaon, where the deceased was employed.
During the course of additional evidence, the claimants have brought
on record, inter alia, the copy of the Income Tax Return (ITR)
submitted by the deceased on 17.07.2009 for the assessment year
(AY) 2009-2010 (page 50 of the paper book). They have also brought
on record, copy of Form 16 issued by the employer for the AY 2009-
2010 (page 51-52 of the paper book) and for AY 2010-2011 (page 53-
54 of the paper book). The last mentioned form 16 pertains to the
period 01.04.2009 till 18.08.2009, the date on which the accident
occurred, the victim having died on the next date. This document,
learned counsel on all sides fairly agree, represents the last
emoluments drawn by the deceased from his employer, it pertaining to
the period of 130 days. The total income reflected in this document is
Rs.2,47,390/-. This would mean the average monthly income would
be [Rs.2,47,390/- / 130 x 30] Rs.57,090/-.
7. The annual income for the relevant period, thus, would come to
[Rs.57,090/- x 12] Rs.6,85,080/-. The learned counsel on all sides
fairly concede that the income tax liability for the AY 2010-2011
against such income would approximately be Rs.51,000/-. Thus, the
net annual income would come to [Rs.6,85,080(-) Rs.51,000/-]
Rs.6,34,080/- (Rupees Six Lakh thirty four thousand and eighty only).
8. Having regard to the clear and irrefutable proof of progressive
rise in income, the employment of the deceased being regular and
permanent, and keeping in view his age at the time of the death, future
prospects to the extent of 50% have been correctly factored in by the
tribunal. Adding the said element, the annual income on which loss of
dependency is to be calculated comes to [Rs.6,34,080/- x 150/100]
Rs.9,51,120/-. Making a deduction of one-fourth towards personal
and living expenses and applying the multiplier of 15, the loss of
dependency is re-calculated as [Rs.9,51,120/- x 3/4 x 15]
Rs.1,07,00,100/-, rounded off to Rs.1,07,00,000/- (Rupees One Crore
and seven lakh only).
9. It is noted that the awards under the non-pecuniary heads of
damages are inadequate. Following the rulings in Rajesh & Ors. v.
Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, award of Rs.1,00,000/- each
on account of loss of love and affection and loss of consortium and
Rs.25,000/- each towards loss to estate and funeral expenses, are
added.
10. Thus, the total compensation in the case comes to
[Rs.1,07,00,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.25,000/- +
Rs.25,000/-] Rs.1,09,50,000/- [Rupees One crore, nine lakh and fifty
thousand only]. The award is modified accordingly. It shall carry
interest as levied by the tribunal.
11. It is noted that the tribunal had apportioned the award by
specifying the amounts in favour of the claimants. Having regard to
the age of the respective claimants, it is instead directed that 60% of
the award shall fall to the share of the first claimant / Suman (widow),
the balance being equally apportioned amongst the remaining four
claimants with corresponding interest.
12. The insurance company will be obliged to deposit the above
mentioned amount payable under the enhanced award within 30 days
making it available to be released to the claimants. This would be
subject to its contentions and, of course, the contentions of the owner
of the offending vehicle vis-a-vis the plea for recovery rights which is
presently pending adjudication before the tribunal.
13. The appeal is disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 30, 2017
yg
