Delhi High Court
Neetu Kadiyan & Ors. vs Bharti Axa General Ins. Co. Ltd.& ... on 15 September, 2017
$~9 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th September, 2017
+ MAC APPEAL No. 341/2017
BHARTI AXA GENERAL INS. CO. LTD. ..... Appellant
Through: Ms. Suman Bagga & Mr.
Pankaj Gupta, Advs.
versus
NEETU KADIYAN & ORS. ..... Respondents
Through: Mr. Sumit Gupta, Adv. for R-1
to R-4.
+ MAC APPEAL No. 490/2017
NEETU KADIYAN & ORS. ..... Appellants
Through: Mr. Sumit Gupta, Adv.
versus
BHARTI AXA GENERAL INS. CO. LTD.& ORS.
..... Respondents
Through: Ms. Suman Bagga & Mr.
Pankaj Gupta, Advs. for
insurance company.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Manish Kadiyan, a practitioner in law, working as Retainer
Advocate with KNM & Partners died, at the age of 33 years, in motor
vehicular accident that occurred on 08.02.2014 involving negligent
driving of Tata Safari bearing registration no. DL 8CM 7734, it
admittedly insured against third party risk with Bharti Axa General
Insurance Co. Ltd. insurance company (insurer), appellant in MAC
Appeal No. 341/2017. His wife and other members of the family
dependent upon him (the claimants), they being appellants in MAC
Appeal No. 490/2017, instituted accident claim case (MACT case no.
399/2014) seeking compensation under Section 166 Motor Vehicles
Act, 1988 on 09.09.2014. The motor accident claims tribunal held
inquiry and, by judgment dated 05.11.2016, accepted the case of the
claimants for compensation holding the driver of the said vehicle
responsible for the accident and consequently found the owner of the
said vehicle to be vicariously liable. The tribunal determined the
compensation thus:-
S.No. Under head Compensation
1. Loss of Dependency Rs. 90,63,360/-
2. Funeral charge Rs. 50,000/-
3. Loss of love and affection Rs. 1,50,000/-
4. Loss of consortium Rs. 1,50,000/-
5. Loss of estate Rs. 50,000/-
6. Medical bills Rs. 6,08,569/-
Total Rs.1,00,71,929/-
2. The liability to pay the afore-mentioned amount was fastened
on the insurer, with interest @ 9% per annum having been levied from
the date of filing of the petition (09.09.2014).
3. The claimants are in appeal (MAC Appeal No. 490/2017)
submitting that the income on the basis of which loss of dependency
was computed was under-assessed. The insurer, on the other hand, is
also in appeal (MAC Appeal No. 341/2017), submitting that income
tax liability was not deducted while computing the loss of
dependency. Having heard the learned counsel on both sides and
having gone through the record with their assistance, this court finds
that both the appeals must be accepted.
4. The claimants had examined Vijay Nair (PW-1), a partner of the
firm with which the deceased was attached as Retainer Advocate.
They also examined Ajay Malik (PW-2), office Superintendent of the
income tax department to prove the income tax returns (ITRs)
submitted by the deceased during his lifetime for the assessment years
2010-2011 to 2013-2014 (collectively Ex.PW-2/1), which would
correspond to financial years 2009-2010 to 2012-2013, the last being
the financial year preceding the year in which the death occurred. The
claimants also examined the widow Neetu Kadiyan (PW-4) and,
through her testimony, brought on record, computation sheets and the
ITR for the assessment year 2013-2014 (Ex.PW-4/2 - collectively).
5. The ITRs for the assessment years 2010-2011 to 2013-2014
reflect progressive rise in the earnings of the deceased, the income
declared by him for the consecutive years in the amounts of Rs.
1,91,177/-, 2,35,248/-, 3,24,863/-, and 5,03,520/- respectively. The
witness (PW-1) examined by the claimants, he being partner with
KNM & Partners, also proved that the deceased had been initially
engaged by the said firm w.e.f. 15.09.2007, initially, at retainer fee of
Rs. 12,000/- per month which had risen over the period, the
retainership of Rs. 75,000/- per month being the last drawn just before
the death. His evidence to this effect is corroborated by the TDS
certificates (Form 16A) (Ex.PW-1/1) for the four quarters 2014-2015
which would correspond to the financial year 2013-2014, the last
payment obviously being and for upto 08.02.2014 when the death
occurred. The income reflected in these TDS certificates totals upto
Rs. 9 lakhs, the last payment reflected having been made on
03.02.2014.
6. Against the above backdrop, it is argued on behalf of the
claimants that the tribunal should have accepted the claim of income
of the deceased to be in the sum of Rs. 9 lakh per month it being the
income for the last financial year when he was alive. Against such
irrefutable evidence, as mentioned above being available, there is no
reason why the tribunal should have ignored the same and not gone by
the TDS Certificates for AY 2014-2015. The plea of the claimants that
the calculation of loss of dependency be computed on the basis of
earnings at Rs. 9 lakh per annum is, thus, accepted.
7. The learned counsel on both sides agree that, going by the
prevalent rates of the income tax for AY 2014-2015, the tax liability
against the annual income of Rs. 9 lakh would be approximately
95,000/-. The net annual income, thus, comes to (9,00,000- 95,000)
Rs. 8,05,000/-. Since the claimants have given irrefutable proof of
progressive rise in income, the element of future prospects of increase
to the extent of 50% is added. As the deceased was born on
24.09.1981 and consequently was 33 years in age at the relevant time,
the loss of dependency is worked out, after deduction of 1/4th from his
income, with the multiplier of 16. The loss of dependency is
recomputed as (8,05,000 x 150 ÷ 100 x 3 ÷ 4 x 16) 1,44,90,000/-.
Adding the other components of damages awarded by the tribunal, the
total compensation payable in the case comes to 1,44,90,000 + 50,000
+ 1,50,000 + 1,50,000 + 50,000 + 6,08,569) Rs. 1,54,98,569/-,
rounded off to Rs. 1,54,99,000/- (Rupees one crore fifty four lakhs and
ninety nine thousand only). The award is modified accordingly.
Needless to add, it shall carry interest as levied by the tribunal.
8. Since suitable apportionment has already been made in favour
of other claimants, it is directed that the entire enhanced portion of the
award shall fall to the share of the first claimant (Neetu Kadiyan) to be
released to her in the form of fixed deposit receipt in a nationalized
bank in her name for a period of ten years with right to draw periodic
interest.
9. The insurance company had been directed by order dated
26.04.2017 to deposit the entire awarded amount with accrued interest
with the Registrar General of this Court, which deposit was allowed to
be released to the claimants, leaving an amount of Rs. 8 lakhs only.
Since the compensation has been enhanced, the amount retained will
also be released to the claimants in terms of the impugned judgment.
The insurer is directed to deposit the balance of its liability with the
tribunal within thirty days.
10. The statutory amount shall be refunded after compliance of the
award has been shown by the Insurance Company.
R.K.GAUBA, J.
SEPTEMBER 15, 2017
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