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IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on^: 16^th November, 2017

+

MAC.APP. 819/2017 & CM No.33259/2017(stay) & CM

No.33260/2017(delay)

THE ORIENTAL INSURANCE CO LTD ..... Appellant

Through:

Mr. A.K. Soni, Adv.

versus

RAJNI ANAND & ORS

..... Respondents

Through:

Mr. S.N. Parashar, Adv. for

R1toR5.

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT (ORAL)

1. Manish Anand, aged 45 years, earning his livelihood from private

business, died as a result of the injuries suffered in motor vehicular

accident that took place on 07.06.2016 involving negligent driving

of motor cycle bearing registration no. DL-10SQ-1911 admittedly

insured against third party risk for the period in question with the

appellant (insurer). The accident claim case (MACT no.1799/2016)

instituted on 08.07.2016 by his wife and four other members of the

family dependant on him, they being first to fifth respondents

(collectively, the claimants). The tribunal by judgment dated

19.04.2017

awarded

compensation

in

the

total

sum

of

Rs.62,44,616/- fastening the liability on the insurer to pay with

interest at 10% (ten percent) per annum. It is noted that the tribunal

has specified the amounts payable to the different claimants.

2. The award has been modified on the apportionment as to be made

afresh. It is directed that sixty percent (60%) of the awarded

compensation with corresponding interest shall fall to the share of

first claimant Rajni Anand (widow). The balance equally be

distributed amongst the remaining claimants, the said amount being

inclusive of Rs. 57,19,616/- towards the loss of dependency, Rs.

25,000/- towards loss of funeral expenses, Rs. 1,00,000/- each for

loss of consortium, loss of estate and loss of love and affection

towards parents besides Rs.2,00,000/- for loss of love and affection

to children.

3.The appeal at hand is pressed by the insurer arguing that while

calculating the loss of dependency based on the Income Tax Return

(ITR) for Assessment Year (AY) 2015-16, tax liability was not

deducted and element of future prospects of increase to the extent of

thirty percent (30%) were wrongly added. The insurer is also in

appeal questioning the non pecuniary heads of damages granted and

the rate of interest levied, submitting that the same are excessive.

4.The claimants had proved the ITR of the deceased for AY 2015-16

(Ex-PW1/1) reflecting the gross total income of Rs. 4,19,019/-. The

ITR does indicate that the income tax liability was Rs.2,093/- only.

The said amount, as rightly pleaded by the insurer, must be

deducted from the income while calculating loss of dependency.

5.Following the ruling of the Constitution Bench of the Supreme

Court rendered on 31.10.2017 in SLP (C) 25590/2014, National

Insurance Company Ltd. Vs. Pranay Sethi and Ors., the element of

future prospects in the present case has to be restricted to twenty

five percent (25%) only.

6.Thus, the loss of dependency is recomputed as (419019-

2093x125/100x3/4x14) Rs. 54,72,153.75 rounded off to Rs.

54,73,000/- (Rupees Fifty Four Lacs Seventy Three Thousand

Only).

7.The non-pecuniary awards also have to be brought down to be in

accord with the dispensation in Pranay Sethi (supra). Thus, Rs.

40,000/- towards loss of consortium and Rs.15,000/- each for loss of

estate and funeral expenses are added. The total compensation in

the course is calculated as Rs.(54,73,000/-+40,000/-+15,000/-

+15,000/-) Rs.55,43,000/- (Rupees Fifty Five Lacs Forty Three

Thousand Only). The award is modified accordingly.

8.The tribunal has not given any special reasons for levy of interest at

ten percent (10%) per annum which is more than the rate ordinarily

applied. Following the consistent view taken by this Court, the rate

of interest is increased to 9% per annum from the date of filing of

the petition till realization. [see judgment dated 22.02.2016 in

MAC.APP. 165/2011 Oriental Insur