Full Text
Date of Decision: 14.01.2021
MS BERSHADSKA TETYANA & ORS .... Appellants
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD (INSURER) .... Appellant
Through: Ms. Neha Garg, Mr. Nitin Garg and Mr. Mahender Yadav, Advocates for claimants.
Mr. Devansh Gupta, Advocate for Insurance Company.
JUDGMENT
1. The claimants‟ appeal: MAC. APP. 491/2013, impugns part of the award of compensation dated 21.03.2013 passed by the learned MACT in the claim petition numbered MACT No. 85/11/10. The claimants are the widow and two sons of Mr. Mykhailo Ivanovych Bershadskyi, who 2021:DHC:159 suffered fatal injuries in a road accident on 01.06.2008. He was taking out his luggage from a bus bearing registration no. DL[1] PC0624, opposite Departure Gate No.3, Terminal-2, IGI Airport, New Delhi, when another bus bearing no. DL[1] PB 7962, struck the bus of the deceased from the rear side with immense force, causing the deceased suffered multiple grievous injuries. He was rushed to Indian Spinal Injuries Centre but succumbed to injuries on the way. A post-mortem report was filed.
2. The bus was driven by R-1 in MAC. APP. 491/2013, in a rash and negligent manner; it was moving at a high speed and in total contravention of traffic rules and regulations. The accident occurred due to the complete negligence of R-1 and no fault was attributed to the deceased. He was homeward bound: preparing to take a flight to his native city, Kiev, Ukraine. His date of birth being 28.07.1951, he was 56 years young. He is stated to have been the Head of Board of a joint stock company called MAVT. He was also a Physical Person Entrepreneur („PPE‟). He was drawing a salary from the former, while from the latter, he was earning on the basis of his experience and profile as a former army-man in the Ukrainian army.
3. PW[1] Satish Kumar, a helper for M/s Panicker Travels, which owned the bus from which the deceased was taking out his luggage, had deposed as an eye witness to the fatal accident in terms of the above. He deposed that he and two-three foreigners also had sustained injuries. His deposition withstood the cross-examination on behalf of the insurer of vehicle. PW[2] the son of the deceased deposed about the earning of their father and promise he held for future earnings as a PPE. He had filed certified copies of financial records, business agreements, educational qualifications and certificates, extending to 157 different documents, including the FIR, Chargesheet and Post Mortem Report, in support of the claim.
4. The insurer has questioned the admissibility of the financial documents and have contended the nature of evidence. Both these contentions were rejected by the impugned order on the ground that the signature of the translator of the original Ukrainian documents were apostilled by the Embassy of India, in Kiev (Kyiv). The original documents were produced during the trial proceedings. The insurer took copies of the same to have them verified. However, nothing came of it. The claimants‟ documents/exhibits were accepted in evidence on the basis of the reasoning contained in paras 91 to 116 of the award. After discussing the law on the admissibility of documents and apostilled translated version of the same, the learned Tribunal noted: “116. Insurance company has not led any evidence to show that the translation is incorrect. Insurance company has not shown that these documents are forged and fabricated. This is inspite of an application by insurance company for adjournment for verification with the help of some honest and prudent agency and tax consultant in Ukraine for this purpose.”
5. The court finds no reason to alter or interfere with the same.
6. The claimants have sought, compensation, inter alia, for loss of earnings, on the basis of the annual income of the deceased. The award is impugned on the methodology of the computation adopted for computation of loss of income.
7. As mentioned above, the earnings of the deceased was from two sources:
(i) his salary from the JSC-MAVT and (ii) his earnings as a PPE. The earnings from the former were based on a Certificate issued by the joint stock company MAVT, which reads as under:
8. The learned counsel for the appellants submits that the impugned order has erred in adopting earnings for 150 days whereas the work earnings were only for 96 days, as can be seen from the third column (“Number of Scheduled Workdays”). The computation should have been extended for the whole year to assess the annual loss of income. The said contention is logical and correct. First the annual earnings have to be assessed, then the proportionate loss to the claimant has to be computed.
9. The aforesaid Certificate shows that the gross earnings of the deceased for 96 days were UAH26,568.54. The net income for this period comes to UAH22702.82, after deducting UAH3865.72 paid towards taxes and insurance contribution. The average daily earning is UAH236.49 (22702.82 divided by 96 days). Albeit, the average daily gross income as mentioned in the certificate above is UAH276.76, this includes payable taxes and insurance premium. The annual income would be UAH 86,328.85 (236.49 x 356). Applying the then prevailing UAH/INR conversion rate of 6.6603, the annual earnings from the JSC-MAVT would be Rs.5,74,909.44/-, instead of Rs. 3,58,649/- as computed in the impugned award.
10. For his earnings as a PPE, the annual income has been computed as Rs.66,41,011/- (UAH999,504 x 6.6603) on the following „quarterly earnings”: “Therefore, in the four quarters before his death the income of the deceased was 62,620 UAH + 62,559 UAH + 62,559 UAH + 62,559 UAH + 62,559 UAH + 1,86,850 UAH + 2,77,750 UAH + 2,22,048 UAH totalling 9,99,504 UAH.” (PDF p. 68, para 122)
11. The claimants contend that the aforesaid total is erroneous and is not borne out from the record. The claimants‟ computation is as under: INCOME AS PHYSICAL PERSON ENTREPRENEUR 3rd Quarter of 2007 (01.07.2007 to 30.09.2007)
DATE AMOUNT EXHIBIT PAGE No. (LCR) 16.07.2007 62,620 UAH PW2/117 574 14.08,2007 62,559 UAH PW2/119 580 17.09.2007 62,559 UAH PW2/121 586 TOTAL (A) 1,87,738 UAH Tax Deposited in 3rd Quarter (01.7.2007 to 30.9.2007)
DATE AMOUNT EXHIBIT PAGE No. (LCR) 26.10.2007 62,559 UAH PW2/123 592 15.11.2007 62,559 UAH PW2/125 598 13,12.2007 1,86,850 UAH PW[2]./127 604 TOTAL (B) 3,11,968 UAH Tax Deposited in 4th Quarter (01.10.2007 to 31,12.20070 DATE TAX EXHIBIT PAGE NO. (LCR) 04,10.2007 600 UAH PW2/103 516 11.12,2007 200 UAH PW2/105 522 28,12.2007 400 UAH PW2/127 528 TOTAL 1200 UAH 1st Quarter of 2008 (01.01.2008 to 31.03.2008)
DATE AMOUNT EXHIBIT Page No. (LCR) 22.01.2008 2,77,750 UAH PW2/129 610 29.01.2008 2,22.048 UAH PW2/131 616 Total (C) 4,99,798 UAH Tax Deposited in 1st Quarter of 2008 (01.01.2008 to 31.03.2008)
1. Total annual income as per MACT (A+B+C): UAH999,504/-
2) Total annual income after deducting tax: 999,504 - 2,400 = UAH 997,104/- 3) Total income in Indian Rupees: UAH997,104 x 6.6603 = Rs.66,41,011/- Computation as per the claimants: Income per month: UAH: 997,104 divided by 9 months = UAH 1,10,789.33 Total annual income = 1,10,789.33 x 12 months = UAH 1,329,472/- Total income in India Rupees: UAH[1],329,468 x 6.6603= Rs.88,54,682.36/-
12. The impugned order has added the earnings of only 9 months. For a full year, the monthly average income in UAH should have been determined and then multiplied by 12 and thereafter by the prevalent INR conversion rate (6.6603), as has been demonstrated by the claimants. Their aforesaid computation of annual income is logical, correct and a fair method of assessment. The aforesaid computation of Rs.88,54,682.36 is accepted.
13. The deceased was 56 years old, therefore, a multiplier of 9 is applicable.
14. Compensation towards „loss of future prospects‟ was denied as the impugned order relied upon the dicta of the Supreme Court in Sarla Varma v. Delhi Transport Corporation, (2009) 6 SCC 121. However, in terms of National Insurance Co. Ltd. v. Pranay Sethi & Ors. (2017) 16 SCC 680, compensation towards „loss of future prospects‟ ought to have been granted at the rate of 10%.
15. The learned counsel for the insurer submits that the claimants were not dependant on the deceased; that the two sons have attained majority and as the records have shown, they are earning on their own. It is further contended that the widow has also been earning a fair amount.
16. The learned counsel for the appellants submits that the claimant-widow was not earning more than 650 UAH per month which in translates to approximately Rs.4,329/- (at current exchange rate of 2.59 the said amount translates to Rs.1,684/-). Surely the said amount cannot be said to be sufficient for her to take care of her needs. She was getting this money from the PPE only because she was the spouse of the „physical person entrepreneur‟ – the deceased. With his demise the goodwill and expertise of the physical person was lost and the enterprise ceased. She has claimed no other source of revenue. However, the insurer has argued that since she was a businesswoman and there was no proof of dependency, either apropos her or the sons, only loss of estate ought to be awarded. But as discussed above, she has disclosed her lone source of income of about Rs.4,329/- (UAD660 per month). Even this insufficient emolument would cease from the PPE upon the demise of her husband. The insurer has shown no other source of income to her. Therefore, her dependency clearly stands established. Accordingly, compensation would have to be paid for „loss of financial dependency‟ and not for „loss of estate‟. Apropos the two sons who had attained the age of majority, no dependency has been shown. In the circumstances, there would be 50% deduction towards „personal expenses‟ of the deceased.
17. There could be no deduction of monies received by the deceased from travel insurance policies purchased by him from his own resources. The impugned order has referred to the dicta of the Supreme Court in Helen
Insurance Co. v. Patricia Jean Mahajan (2002) 6 SCC281 as under: