THE COMMISSIONER OF INCOME TAX II vs. KMC CONSTRUCTIONS LTD

MAC App. No.925/2012 etc.

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$~R-579-580 (common order)

IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 28th November, 2017

+ MAC.APP. 925/2012

NATIONAL INSURANCE CO. LTD. ..... Appellant Through: Mr. Pankaj Seth, Advocate

Versus

SUMAN SHARMA & ORS.

..... Respondents Through: Mr. S.N. Parashar, Advocate + MAC.APP. 540/2013 SMT. SUMAN SHARMA & ORS.

..... Appellants Through: Mr. S.N. Parashar, Advocate

Versus

NATIONAL INSURANCE CO. LTD. ...... Respondent Through: Mr. Pankaj Seth, Advocate

CORAM: HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT (ORAL) 1. Ram Kishan Sharma, then aged 42 years, an employee of Delhi Jal Board, working as Assistant Pump Driver, suffered injuries in a motor vehicular accident that occurred on 05.10.2010 and died in the consequence. At the time of the accident, he was riding a motorcycle bearing registration No.DL-13SC-8689 (the motorcycle). His wife and five other family members dependent on him (collectively, the

MAC App. No.925/2012 etc.

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claimants) instituted accident claim case (MACT No.55/2011) on 28.01.2011 seeking compensation on the averments that the accident had been caused due to negligent driving of car bearing registration No.DL-1CC-5183 (the car) by Kishan Kumar, a respondent in these appeals. The tribunal accepted the said case on the basis of evidence led before it and, by judgment dated 19.03.2012, held the said car driver responsible. Since the car is registered in the name of Mukesh Kumar, other respondent in the appeals and was admittedly insured against third party risk for the period in question with National Insurance Company Limited (the insurer), the liability to pay the compensation determined in the sum of Rs.28,01,016/- was fastened eventually on the insurer, though deduction being made to the extent of ten per cent (10%) on the ground of contributory negligence, the element of interest @ 7.5% per annum having been added. 2. The insurer by its appeal (MAC APP.925/2012) has questioned the calculation reached by the tribunal on the issue of involvement of the car on one hand and negligence on the part of its driver on the other. It also argues, in the alternative, that if the evidence led were to be accepted, the contributory negligence should have been to the extent of 50%. It further submits that the loss of dependency calculated was erroneous as no deduction on account of income tax liability was made. 3. Per contra, the claimants, by their appeal (MAC APP.540/2013), submit that the loss of dependency was not correctly calculated as certain allowances which were regular in nature have

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been wrongly kept out. The claimants also argue that the rate of interest levied is inadequate. 4. Having heard the learned counsel on both sides and having gone through the record of inquiry before the tribunal, this court finds no substance in the argument of the insurer on the question of proof of negligence. The evidence of Dharam Vir Singh (PW-2) has virtually gone unimpeached, there being no effort made on the part of any of the contesting parties to call the driver of the car in the witness box to depose facts to the contrary. It is clear from the evidence of PW-2 that the car had overtaken the motorcycle at a high speed, this eventually resulting in the collision. 5. It appears that deceased had consumed alcohol as there was smell of alcohol from his nostrils after the accident had occurred. It is this fact which has resulted in the finding on the issue of contributory negligence. In the opinion of this court, the assessment of the tribunal was appropriate and would not call for any interference. 6. The claimants had proved that the deceased was earning Rs.18,921/- as salary from Delhi Jal Board. The tribunal has made deduction of conveyance allowance, washing allowance and transport allowance. This was not correct as such allowances were regular and would result in corresponding savings for the family. In these circumstances, the loss of dependency is recalculated as (18,921/- x 130/100 x 3/4 x 12 x 14) Rs.30,99,259.80 rounded off to Rs.31,00,000/-.

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R.K.GAUBA, J. NOVEMBER 28, 2017 vk