United India Insurance Co Ltd v. Bhawna Walia & Ors.

1. This appeal has been filed by the Insurance Company challenging Award dated 13th December 2018 passed by MACT, East District: Karkardooma Courts, Delhi in Suit no. D-11324/16, granting compensation of Rs.32,34,000/- with interest @ 9% per annum.

2. The primary ground for challenge, as per Ms. Mouli Sharma, counsel for appellant/Insurance Company, is that the benchmark income was considered at Rs. 20,000/- per month relying on the ITR for A.Y. 2015-16, showing gross income of Rs.2,29,550/-.

3. The dependency was calculated on this basis by adding 40% towards future prospects and deducting 1/3rd towards personal and living expenses, thereby awarding a total compensation of Rs.32,34,000/- along with interest @ 9% per annum.

4. Ms. Mouli Sharma, counsel for Insurance Company, submits that MACT has considered the ITR acknowledgement filed by claimant for Assessment Year (‘AY’) 2015-16 in relation to accident which occurred on 1st November 2015.

5. Two ITRs were placed on record by the claimants, which were exhibited as Ex. PW-1/5 & Ex. PW-1/6 for AY 2014-15 and AY 2015-16. However, she points out to communication dated 13th January 2016, which has been placed on record of MACT, issued by Income Tax Officer, Ward 47 (3), Delhi, addressed to East Delhi DCP Office, Delhi Police, stating that in reference to PAN card no. AAYPW3748F for verification, in name of Rakesh Kumar Walia, no return for income in AY 2014-15 was filed, as per record of their office. The said communication is extracted as under:

6. She therefore states that ITR acknowledgements, which have been filed by claimant for AY 2014-15 and 2015-16, are forged and fabricated. ITR for AY 2014-15 and 2015-16 are extracted as under:

7. To this, Mr. Dhananjay Gupta, counsel for respondent nos. 1 and 2 states that Ex. PW1/5 & Ex. PW1/6 were produced by PW[1], wife of the deceased, and that she was neither confronted with these documents nor was any rebuttal evidence led by the Insurance Company in this regard.

8. To this, Ms. Mouli Sharma submits that it is for the claimant to present the best evidence and, therefore, once a suggestion was put to PW[1] during cross-examination by the Insurance Company that she was deposing falsely, it was incumbent upon the claimants to get the documents proved through the Income Tax Officer. To substantiate her submission, she relies upon the judgment of the Supreme Court in LIC of India and Anr. v. Ram Pal Singh Bisen, being Civil Appeal No. 893/2007 dated 16th March 2010, wherein, in paragraph 27, the Court has noted that it is the duty of the person producing the document to prove it in accordance with law, and further recorded that the contents of documents so produced should be proved by primary or secondary evidence, and that the admission of a document may amount to admission of its contents, but not their truth. Relevant paragraphs of the said judgment are extracted as under: “27.It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do. ***

31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.” (emphasis added)

9. The Court put it to the claimant’s counsel that the Income Tax Officer could be summoned, at their request, to prove the said documents and to testify in relation to said documents; however, Mr. Dhananjay Gupta, on instructions, states that they wish to argue the matter on the basis of the material already available on record.

10. This persuades the Court to accept the submissions of the Insurance Company that these documents are not authentic.

11. Accordingly, Ms. Mouli Sharma submits that the minimum wages of a skilled worker ought to be taken for the assessment of benchmark income. Minimum wages applicable in Delhi to a skilled worker at the time of accident were Rs.11,154/-.

12. To this, Mr. Dhananjay Gupta points out to the salary certificate dated 15th December 2015, which was verified by the IO on 16th February 2016 and formed part of the DAR, and which is extracted hereunder:

13. Further, he states that the benchmark income ought to be assessed at Rs. 17,300/- per month, as recorded in the above-extracted salary certificate. In support of his contention, he relied upon the judgment of this Court in Dimple @ Dimple Verma and Ors. v. Afasar Ali and Ors. 2026:DHC:642, wherein while relying upon the decision of Bajaj Alliance General Insurance Co. Ltd. vs Meera Devi & Ors. 2021:DHC:555, this Court held that contents of DAR were presumed to be correct and read in evidence without formal proof of the same unless proof to the contrary was produced.

14. A perusal of DAR otherwise shows that education of victim is till 8th Standard, occupation was recorded as ‘private job’ and income column had been left blank. Therefore, it is difficult to assess as to whether there was any actual income being received by deceased.