Delhi High Court
Shiv Prakash Rathi & Anr vs Fahim Ahmed & Ors (M/S Iffco-Tokio ... on 31 October, 2023
$~68 & 69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31.10.2023
(68)+ MAC.APP. 774/2016 & CM APPL. 36389/2019
SHIV PRAKASH RATHI & ANR ..... Appellants
Through: Mr.Mayank Khurana and Mr.Akash
Tomar, Advs.
versus
FAHIM AHMED & ORS (M/S IFFCO-TOKIO GENERAL
INSURANCE CO LTD) ..... Respondents
Through: Mr.D. Satya Sai Sumanth and
Mr.K.V. Girish Chowdhary, Advs. for
R-3.
(69)+ MAC.APP. 312/2017
IFFCO TOKIO GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr.D. Satya Sai Sumanth and
Mr.K.V. Girish Chowdhary, Advs.
versus
PRAKASH RATHI & ORS ..... Respondents
Through: Mr.Mayank Khurana and Mr.Akash
Tomar, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. These appeals have been filed challenging the Award dated
09.06.2016 (hereinafter referred to as 'Impugned Award') passed by the
learned Motor Accident Claims Tribunal (North West District), Rohini
Courts, Delhi (hereinafter referred to as 'Tribunal') in MACT No. 204/2012
(New No. 49364/2016) titled Sh. Shiv Prakash Rathi & Anr. v. Sh. Fahim
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Ahmed & Ors.
2. As the two appeals challenge the same Award, they are being
disposed of by this common judgment.
3. The above claim petition was filed by the claimants stating that on
05.03.2012 at about 4:30 PM, the deceased Sh. Anand Rathi was driving his
motorcycle, bearing registration no. MH-02-BX-0135. As he reached the
Punjab Keshri Bus Stand, suddenly a truck bearing registration No. HR-55J-
5298 (hereinafter referred to as the 'Offending Vehicle'), being driven in a
rash and negligent manner came from Azadpur Mandi side, and suddenly
turned towards the left side at a high speed due to which it hit the
motorcycle of the deceased. The deceased got crushed under the front and
rear wheels of the Offending Vehicle and unfortunately lost his life. The
deceased was aged around 25 years at the time of the accident.
Income of the Deceased:
4. The challenge of the Insurance Company to the Impugned Award is
that the learned Tribunal has erred in determining the income of the
deceased based on Form-16 (Ex.PW-3/2) produced by PW-3- Sh. Ankit
Mundhra, Branch Head, M/s Amjey Chemical Private Limited (hereinafter
referred to as 'Company').
5. The learned counsel for the Insurance Company submits that the said
Form-16 was filed with the Income Tax Authorities after the date of the
accident. He submits that the learned Tribunal has held that PW-3 was not a
reliable witness inasmuch as there were various contradictions in his
statement and the documents produced by him. He submits that for the said
reason, the learned Tribunal should also have refused to place reliance on
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Form-16 which was produced by PW-3, the same having been manufactured
only after the date of the accident.
6. On the other hand, the learned counsel for the claimants submits that
the learned Tribunal has erred in determining the income of the deceased
only on the basis of Form-16 produced by PW-3. He submits that PW-3 in
his statement had stated that the deceased had joined the employment of the
Company only on 01.09.2011. He submits that the offer letter shows that the
annual salary of the deceased was Rs.6,36,000/-. Form-16 as produced
relates only to the period 01.09.2011 to 31.03.2012 and not for the full
Financial Year. He submits that, therefore, the amounts shown in Form-16
should have been extrapolated to the entire year for determination of the
income of the deceased. He submits that the learned Tribunal has also erred
in not relying upon the statement of PW3 and the documents produced by
him in support of the assertion that the deceased was employed with the
Company with effect from 01.09.2011 at an annual salary of Rs. 6,36,000/-.
He submits that the compensation granted to the Claimants is, therefore,
entitled to be increased.
7. I have considered the submissions made by the learned counsels for
the parties.
8. It was the case of the claimants before the learned Tribunal that the
Company had issued an Offer Letter dated 29.08.2011 to the deceased
(Ex.PW-3/1), offering him the position of a General Manager, at a monthly
salary of Rs.53,000/- and an annual salary of Rs.6,36,000/-. At the same
time, an Employment Letter dated 17.08.2011 was also produced by the
claimants from the same company as Ex.PW-1/10, which showed the
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position offered to the deceased as Marketing Manager. The same shows the
monthly salary of the deceased as Rs.53,000/-, while the annual salary,
including annual bonus, to be Rs.6,36,000/- and Rs.6,89,000/-, respectively.
There was a discrepancy in the position that had been offered to the
deceased- one of General Manager, while the other as Marketing Manager.
9. Though, in my opinion, nothing much turns on this discrepancy in the
position offered to the deceased, however, there are other material
discrepancies in the documents and the statement of PW-3, which clearly
cast a doubt on the statement of PW3 and the documents produced by him,
and their authenticity, and give credence to the submission of the learned
counsel for the Insurance Company that they could not have been relied
upon by the learned Tribunal. These are enumerated herein below.
(i) PW-3 had also produced before the learned Tribunal purported
cash vouchers {Ex.PW-3/3 (6 sheets)}, which show payments
ranging between Rs.9,500/- per month to Rs.13,000/- per
month, in cash, by the Company to the deceased. There is
however, no proof of payment of the salary to the deceased.
PW-3 in his statement further stated that the deceased had not
been paid any amount except the amount as shown in the cash
voucher referred to hereinabove;
(ii) The said witness also produced a purported ledger account,
which again reflected that against the alleged salary Rs.53,000/-
per month, the deceased was being paid only a sum of
Rs.9,500/- to Rs.13,000/- per month by the said Company and
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that too, in cash. The said withdrawal was shown as being for
personal use;
(iii) PW-3 further stated that the balance of the salary was kept by
the deceased in the bank account of the Company itself. He
states that the said account was not to carry any interest. This
appears to be totally unbelievable as no employee will leave his
salary with the employer and that too, without any liability of
payment of interest;
(iv) He states that the balance salary due to the deceased was paid
by the Company to the father of the deceased only after the
accident and the death of the deceased. In fact, from the bank
statement produced by the claimants before the learned
Tribunal, it appears that the said payment of Rs.2,39,061/- was
made only on 16.09.2013, that is, more than one year and nine
months from the date of the accident;
(v) The claimants also relied upon a purported Power of Attorney
dated 17.08.2011(Ex.PW-3/8), by which the deceased had been
made one of the signatories to the bank account of the
Company along with the Directors of Company. The learned
counsel for the claimants explains that the said document pre-
dates the date of the deceased joining the Company as per the
Offer Letter and the Employment Letter referred to
hereinabove, as at that time, the deceased was working in the
Ahmadabad Office of the said Company. However, PW-3 in his
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statement states that before joining the Delhi Office, the
deceased was working as a 'trainee' for 2 to 3 months. There is
no explanation as to why the Company would make a 'trainee'
its Authorised Signatory to operate the bank accounts even
prior to his appointment.
10. From the above, it is apparent that the documents that had been
produced on record by the claimants could not be relied upon as there were
contradictions not only in the documents but also on the facts stated therein.
11. In the above background, the Form-16 produced by the Claimants
also becomes suspicious and not worthy of any reliance. The same had been
submitted by the Company post the accident and appears to have been filed
only to generate proof of income of the deceased. The same should not have
been relied upon by the learned Tribunal to determine the income of the
deceased.
12. I am mindful of the principle that the Motor Accident Claims are to be
tried on the touchstone of preponderance of probability and not to be proved
beyond reasonable doubt as is required in Criminal Trials. Even applying the
above principle, in my opinion, the claimants have failed to prove these
documents and the contents thereof.
13. In Oriental Insurance Co. Ltd. v. Meena Variyal & Ors., (2007) 5
SCC 428, the Supreme Court has observed as under:
"11. ......... It was necessary for the claimants to
establish what was the monthly income and what was
the dependency on the basis of which the
compensation could be adjudged as payable. Should
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not any Tribunal trained in law ask the claimants to
produce evidence in support of the monthly salary or
income earned by the deceased from his employer
company? Is there anything in the Motor Vehicles Act
which stands in the way of the Tribunal asking for the
best evidence, acceptable evidence? We think not.
Here again, the position that the Motor Vehicles Act
vis-a-vis claim for compensation arising out of an
accident is a beneficent piece of legislation, cannot
lead a Tribunal trained in law to forget all basic
principles of establishing liability and establishing
the quantum of compensation payable...... "
14. At this stage, the learned counsel for the Claimants submits that the
Claimants had also produced before the learned Tribunal the Income Tax
Return (Ex.PW-1/8) of the deceased for the Assessment Year 2011-12 filed
on 19.11.2011, that is, prior to the date of the accident. He submits that the
said document has not been relied upon by the learned Tribunal only
because the Claimants did not produce the official witness to prove the
same. He submits that the said document, however, was proved by the
testimony of PW-1, that is, Mr.Shiv Prakash Rathi, father of the deceased.
15. I find merit in the submission made.
16. While determining the just compensation payable under Section 166
of the Motor Vehicles Act, 1988, the learned Tribunal is not to hold a trial
but to conduct an inquiry for determination of such compensation. The strict
burden of proof would not be applicable to such an inquiry. The
determination of the income can be made on the sole document of Income
Tax Return, as has been held by the Supreme Court in Kalpanaraj v. T.N.
State Transport Corpn. (2015) 2 SCC 764, observing as under:
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"8. It is pertinent to note that the only available
documentary evidence on record of the monthly
income of the deceased is the income tax return filed
by him with the Income Tax Department. The High
Court was correct therefore, to determine the monthly
income on the basis of the income tax return."
17. The Income Tax Return of the deceased shows the gross income to be
Rs.2,64,890/-, on which the tax payable was Rs.504/- The annual income of
the deceased should, therefore, be re-determined as Rs.2,64,386/-.
18. Based on the above, the compensation payable to the claimants
towards loss of dependency is re-determined as under:-
Annual Income (minus tax) = Rs.2,64,386/-
(Add) 50% Future Prospect = Rs.1,32,193/-
Rs.3,96,582/-
(Less) 50% towards personal expenses = Rs.1,98,291/-
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Annual loss of dependency = Rs. 1,98,291/-
Multiplier = 18
Loss of Dependency (1,98,291 x 18) = Rs.35,69,238/-
Award of compensation on the conventional heads:
19. The learned counsels for the parties further challenge the
compensation that has been awarded in favour of the claimants towards loss
of affection, funeral expenses and loss of estate.
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20. The learned counsels for both the parties submit that the
compensation awarded is not in terms of the judgment of the Supreme Court
in National Insurance Company Limited v. Pranay Sethi and Others,
(2017) 16 SCC 680.
21. In Pranay Sethi (Supra), the Supreme Court has held that
compensation awarded on conventional heads, namely, loss of estate, loss of
consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and
Rs.15,000/-, respectively.
22. As far as loss of consortium is concerned, keeping in view the
judgment of the Supreme Court in United India Insurance Co. Ltd. v.
Satinder Kaur alias Satwinder Kaur & Ors. (2021) 11 SCC 780, the same
has to be awarded to each of the claimants.
23. In the present case, as the claimants are the parents of the deceased,
and they both have suffered loss of consortium of the deceased, they shall be
entitled to Rs. 40,000/- each towards loss of consortium.
24. Accordingly, the compensation awarded towards conventional heads
is re-determined as under:
S.No. Particulars Amount
1 Loss of estate Rs.15,000/-
2 Loss of consortium Rs.80,000/-
3 Funeral expenses Rs.15,000/-
Total Rs.1,10,000/-
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CONCLUSION AND DIRECTIONS:
25. The Impugned Award shall stand modified to the above extent.
26. The Insurance Company has already deposited the awarded amount
as awarded by the learned Tribunal with the learned Tribunal. By an order
dated 22.03.2017 passed in MAC.APP. 774/2016, a part amount was
directed to be released in favour of the Claimants. Out of the remaining
amount, the excess amount deposited by the Insurance Company shall be
released in favour of the Insurance Company along with proportionate
interest accrued thereon. The balance amount as re-determined by this
Court, shall continue to be disbursed to the Claimants in terms of the
schedule of the disbursal as stipulated in the impugned Award.
27. The statutory amount deposited by the Insurance Company shall be
released in favour of the Insurance Company along with interest accrued
thereon.
28. The appeals along with the pending application are disposed of in the
above terms.
29. There shall be no order as to costs.
NAVIN CHAWLA, J
OCTOBER 31, 2023/ns/RP
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