Delhi High Court
Royal Sundaram Alliance ... vs Geeta And Ors on 31 October, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st October, 2017
+ MAC.APP. 964/2014 & CM No. 17616/2014
ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD
..... Appellant
Through: Mr. Pankaj Gupta for Suman
Bagga, Advs.
versus
GEETA AND ORS ..... Respondents
Through: Mr. Akhtar Hussain, Adv. for
R-1 & R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Anil Aswal, aged 35 years, employed in a private company M/s
Taneja Vidyut Control Pvt. Ltd., working as a supervisor, with a
service of about 10 years, suffered injuries in a motor vehicular
accident that occurred on 09.09.2009 due to the negligent driving of
Truck Dumper bearing registration no. HR-55-E-8844 and died in the
consequence. The offending vehicle was admittedly insured against
third party risk with the appellant insurance company (insurer). On
accident claim case (suit no.80/2014) instituted on 30.09.2009 by the
wife, two minor children and parents of the deceased, the tribunal held
inquiry and, by judgment dated 07.04.2014, accepted the claim,
holding the truck driver responsible for the accident. The tribunal
awarded compensation in the total sum of Rs. 43,54,000/- and
fastened the liability on the appellant (insurer) to pay. The parents of
the deceased who had joined the claim case as fourth and fifth
petitioners, however, had relinquished their share in favour of the
minor children. The tribunal therefore did not apportion any share in
their favour, their names having being deleted from the array.
2. The amount of compensation determined by the tribunal
included Rs. 41,04,000/- towards loss of dependency; Rs. 1,00,000/-
each towards loss of love and affection and loss of consortium, Rs.
25,000/- each on account of loss of estate and funeral expenses. The
loss of dependency was worked out on the basis of the conclusion
reached by the tribunal that the income of the deceased at the time of
death was Rs. 17,100/- . It added the component of future prospects of
increase to the extent of 50%, made deduction of 1/4th towards
personal expenses and applied the multiplier of 16.
3. The insurer, by the appeal at hand, questions the computation of
loss of dependency arguing that the income of the deceased was not
properly proved and that there was no basis to the assumption that the
last drawn salary of the deceased was Rs. 17,100/-. Reference in this
regard is made to the statement of Sanjeev Sikka (PW3) head of the
HR department of the employer company besides that of S.L. Gola
(PW2) manager administration in the same very company to point out
that corresponding salary vouchers evidencing the receipt of payment
of salary by the deceased had not been brought on record that there
were no income tax returns (ITR's) proved. It may be mentioned here
that besides the said two witnesses, the claimants had also relied on
the statement of Geeta Aswal (PW1), the first respondent (claimant),
she being the widow, deposing on the strength of her affidavit. It is
also the contention of the insurer that since the evidence of the
witnesses from the employer company shows that there was no regular
rise in the income, the increments which the deceased was getting
having been decreased over the years the element of future prospects
should not be added.
4. The insurer has further submitted that since the parents of the
deceased had relinquished their share, there were only three claimants
and, thus, the deduction on account of personal and living expenses
could have been made to the extent of one-third (1/3rd ) . The insurer
also requests that while recomputing the compensation, the tax
liability be deducted.
5. Against the above backdrop, by order dated 13.01.2016, the first
respondent had been directed to discover on oath the income tax
returns filed by the deceased for the assessment years immediately
preceding his death. An affidavit sworn on 09.09.2016 by the first
respondent was submitted in compliance on the said date. But since it
was not very clear about the status of ITRs, the discovery being in
relation to certificate of tax deduction at source (TDS), pursuant to
further directions, the first respondent submitted another affidavit
sworn on 02.02.2017 which was filed in the registry on 03.02.2017.
This affidavit confirmed that the deceased during his lifetime had not
submitted any ITRs to the income tax department. Reliance is thus
placed on the TDS certificates issued by the employer.
6. The TDS certificate for AY- 2009-10 (Ex-PW1/A) was proved
by the first respondent during her testimony which remained
unchallenged. This would show the gross salary during the financial
year 2008-09 was Rs. 1,77,046/-. The claimants have also relied upon
the TDS certificate for assessment year 2010-11 which would
correspond to the financial year 2009-10. This also bears due
attestation and authentication for and on behalf of the employee (Pg
333 of the tribunal's record). It reflects total salary earned during the
said financial year to be Rs. 85,236/-.
7. It has to be borne in mind that the death had occurred on
09.09.2009. Taking this fact into account, the TDS certificate for AY
2010-11 is found to represent the correct picture about the salary
earned by the deceased, it being an average of (85236/159x30)
Rs.16,082/-. In the face of such material on record, the submission of
the insurance company about conclusion of the tribunal assuming the
last income of the deceased as being Rs. 17,100/- is found to be
correct. The loss of dependency thus is to be re-calculated on the
basis of last income of Rs. 16,082/- per month.
8. The parents of the deceased undoubtedly were dependants on
him. Only because they have chosen to relinquish their share in the
compensation would not mean that their existence is to be kept out of
consideration. The fact remains that on the date of the death, there
were five members of the family dependant on deceased. In these
circumstances, the deduction to the extent of one-fourth due to
personal and living expenses is found to be correct.
9. The salary of the deceased being the average sum of Rs.
16,082/-, the annual salary would come to (16082x12) Rs. 1,92,984/-
approx. Going by the rates of income tax applicable to the relevant
period, and the exemptions that could be claimed, there is no case
made out for any income tax liability to be deducted.
10. The evidence clearly shows that the employment of the
deceased was regular and permanent. Some reduced rate of increment
for certain period does not mean that the element of future prospects
of increase cannot be factored in. Going by the ruling in Sarla Verma
& Ors. Vs. DTC & ANR (2009) 6 SCC 121, having regard to the age of
the deceased, 50% will have to be added on this account.
11. Thus, the loss of dependency is re-calculated as
(16082x150/100x3/4x12x16) Rs.34,73,712/- rounded off to Rs.
34,74,000/-. Adding the other components of compensation awarded
by the tribunal, the total compensation in the case is determined as
(34,74,000+2,50,000) Rs. 37,24,000/- (Rupees Thirty Seven Lacs and
Twenty Four Thousand only).
12. The award is modified accordingly. Following the consistent
view taken by this Court, the rate of interest is increased to 9% per
annum. [see judgment dated 22.02.2016 in MAC.APP. 165/2011
Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.]
13. The insurance company had been directed by order dated
29.10.2014 to deposit the entire award along with accumulated interest
with the Registrar General and, out of such deposit, 50% was
permitted to be released to the claimants, the balance kept in fixed
deposit with UCO Bank, High Court Branch. The registry shall now
calculate the balance payable to the claimants in terms of the
modification ordered above, refunding the excess in deposit to the
insurance company. In case there is deficiency in the deposit, the
insurance company will be obliged to pay the same with the tribunal
within 30 days.
14. The statutory amount shall be refunded.
15. The appeal is disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 31, 2017
umang
