BAJAJ ALLIANZ GENERAL INSURANCE CO LTD (INSURER)  Vs MS BERSHADSKA TETYANA & ORS

MAC APP Nos. 491 & 492/2013 Page 1 of 12
$~23 & 24
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Decided on: 14.01.2021

+ MAC.APP. 491/2013 & CM APPL. 13731/2020

MS BERSHADSKA TETYANA & ORS …. Appellants

versus

MR SURENDER SINGH & ORS ….Respondents

+ MAC.APP. 492/2013

BAJAJ ALLIANZ GENERAL INSURANCE CO LTD (INSURER)
…. Appellant
versus

MS BERSHADSKA TETYANA & ORS. ….Respondents
Through: Ms. Neha Garg, Mr. Nitin Garg and Mr.
Mahender Yadav, Advocates for claimants.

Mr. Devans h Gupta, Advocate for Insurance
Company.
CORAM:
HON’BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J . (ORAL)

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 peti tion numbered MACT No. 85/11/10. The claimants are the
widow and two sons of Mr. Mykhailo Ivanovych Bershadskyi, who
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MAC APP Nos. 491 & 492/2013 Page 2 of 12
suffered fatal injuries in a road accident on 01.06.2008. He was taking
out his luggage from a bus bearing registration no. DL1 PC0624,
opposite Departure Gate No.3, Terminal -2, IGI Airport, New Delhi,
when another bus bearing no. DL1 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 b us was driven by R -1 in MAC. APP. 491/2013 , in a ra sh and
negligent manner; it was moving at a high speed and in total
contravention of traffic rules and re gulations. The accident occurred due
to the compl ete 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, K iev, 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 prof ile
as a fo rmer army -man in the Ukrainian a rmy.
3. PW1 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 depos ed
that he and two -three foreigners also had sustained injuries. His
deposition withstood the cross -examination on behalf of the insurer of
vehicle. PW2 the son of the deceased deposed about the earning of their
father and promise he held for future earnin gs as a PPE. He had filed
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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 in surer 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 w ere 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 accept ed 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 l ed 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 decease d. The award is
impugned on the methodology of the computation adopted for
computation of loss of income.
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7. As mentioned above , the earnings of the deceased was from two sources :
(i) his salary from the JSC -MAVT and (ii) his earning s 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
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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 wer e UAH 26,568.5 4. The net income for this period comes
to UAH 22702.82 , after deducti ng UAH3865.72 paid towards taxes and
insurance contribut ion. The average daily earning is UAH236.49
(22702.82 divided by 96 days). Albeit, t he average daily gross income as
mentioned in the certificate above is UAH 276.76 , this includes payable
taxes and in surance 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 h is 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 + 2,77,7 50
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‟ com putation is as under:
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MAC APP Nos. 491 & 492/2013 Page 6 of 12

INCOME AS PHYSICAL PERSON ENT REPRENEUR
3rd Quarter of 2007 (01.07.2007 to 30.09.2007)
DATE AMOUNT EXHIBIT PAGE N o. (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 TAX EXHIBIT PAGE NO. (LCR)
20.07.2007 400 UAH PW2/99 506

4th Quarter of 2007 (01.10.2007 to 31.12.2007)
DATE AMOUNT EXHIBIT PAGE N o. (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 PW2./127 604
TOTAL (B) 3,1 1,968 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 PW2/1 27 528
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 2,22.04 8 UAH PW2/13 1 616
Total (C) 4,99,798 UAH

Tax Deposited in 1st Quarter of 2008 (01.01.2008 to 31.03.2008)
DATE TAX EXHIBIT Page No. (LCR)
12.03.2008 1800 UAH PW2/111 544
TOTAL 1800 UAH
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MAC APP Nos. 491 & 492/2013 Page 7 of 12

Computation as per the impugned award:
1. Total ann ual income as per MACT (A+B+C): UAH 999,504 /-
2) Total annual income after deducting tax :
999,504 – 2,400 = UAH 997,104 /-
3) Total income in Indian Rupees : UAH 997,104 x 6.6603 = Rs.66,41,011/ –

Computation a s 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 1,329,4 72/-
Total income in India Rupees: UAH 1,329,468 x 6.6603= Rs .88,54,6 82.36 /-

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.88,54,6 82.36 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
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MAC APP Nos. 491 & 492/2013 Page 8 of 12
contend ed that the widow has also been earning a fair amount.
16. The learne d 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 th e 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, eith er 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 he r husband.
The insurer has shown no other source of income to her. Therefore, h er
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 w ho ha d attained the age of
majority , no dependency has been shown. In the circumstances, there
would be 50% deduction towards „personal e xpenses‟ 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 Sup reme Court in Helen
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MAC APP Nos. 491 & 492/2013 Page 9 of 12
C. Rebello v. State of Maharashtra (1999) 1 SCC 90 and United India
Insurance Co. v. Patricia Jean Mahajan (2002) 6 SCC281 as under:

“192. In the case of Hellen C. Rebello (Supra) following para
was quoted from the case of Parry v. Cleaver (1969) 1 All
England Report 555: –
“As regards monies coming to the plaintiff under a
contract of insurance, 1 think that the real and
substantial reason for disregarding them is that the
plaintiff has bought them and that it would be unjust
and unreasonable to hold that the money which he
prudently spent on premiums and the benefit from it
should enure to the benefit of the tortfeasor. Here
again I think t hat the explanation that this is too
remote is artificial and unreal. Why should the plaintiff
be left worse of than if he had never insured? In that
case he would have got the benefit of the premium
money; if he had not spent it he would have had it in
his possession at the time of the accident grossed up at
compound interest.”
193. Further para 20 of the judgment reads as under: –
“20. Many invest through this policy for a variety of
reasons, maybe, to secure the sum for himself as forced
saving, maybe, as in India, for deduction towards his
income tax liability, to secure loan by himself in case
needed on a meagre interest for building his residence
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MAC APP Nos. 491 & 492/2013 Page 10 of 12
or to secure a sum in case of happening of the said
contingencies etc. He enters into this contract with an
open eye, as an act of wisdom, of course, not towards
gain to the tortfeasor. The English Court expressing
concern on this aspect in the aforesaid decision
recorded: “Why should the plaintiff be left worse off
than if he had never insured.” Thus, the inter pretation
of deduction of life insurance would result into gain to
the wrongdoer in proportion to the higher scale of
premium paid by the insured for no contribution of his
and loss to the claimant in pr oportion to the higher
scale of premium paid, as he w ould have received the
compensation amount without payment of any
premium.”
194. It is further held in the case of Helen C. Rebello (Supra)
that any amount received or receivable not only on account of
the accidental death but which would have come to the claimant
‘otherwise could not be construed to be the “Pecuni ary
Advantage” liable for deduction. It is further held in the said
judgment that an amount of loss and gain of one contract
cannot be made applicable to the loss and gain of another
contract and an amount receivable under a statute cannot have
any correlation with an amount earned by an individual. It is
further held in Para 35 as under: –
“35. The insured (deceased) contributes his own money
for which he receives the amount which has no
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MAC APP Nos. 491 & 492/2013 Page 11 of 12
correlatio n to the compensation computed as against
the tortfeasor for his negligence on account of the
accident. As aforesaid, the amount receivable as
compensation under the Act is on account of the injury
or death without making any contribution towards it,
then how can the fruits of an amount received through
contributions of the insured be deducted out of the
amount receivable under the Motor Vehicles Act. The
amount under this Act he receives without any
contribution. As we have said, the compensation
payable u nder the Motor Vehicles Act is statutory
while the amount receivable under the life insurance
policy is contractual.”

18. The impugned award concludes that the benefit of insurance policies
shall not be deducted from the compensation payable to the LRs of the
deceased, because the MACT awarded compensation is a statutory
compensation, payable only in motor accident claims, while the
monetary benefit under insurance policies is given to the LRs of a
deceased for any accidental injury including road traffic acci dents.
Therefore, the contractual benefits with the insurance company cannot
be for the benefit of the tortfeasor, whose negligent act resulted in the
death of the deceased. The reasoning does not call for any interference.
19. In terms of United India Insuran ce Co. Ltd. v. Satinder Kaur @
Satwinder Kaur & Ors., Civil Appeal No. 2705 of 2020, no
compensation is payable for „loss of love and affection‟ . Therefore, the
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MAC APP Nos. 491 & 492/2013 Page 12 of 12
Rs.25,000/ – awarded by the learned Tribunal on this count shall be
deducted. Howev er, for loss of consortium Rs.40,000/ – shall would be
paid to each claimant.
20. In view of the above, the amount payable to the widow of the deceased
shall be: Rs.88,54,682.36 (from PPE) + Rs.5,74,909.44/ – (from JSC-
MAVT) = 9,429591/ – x 9 (multiplier) = Rs .8,48,66,326.2 + 10%
(towards loss of future prospects) = 9,33,52,958.82 less 50% (deduction
towards personal expenses) = Rs.4,66,76,479.41
21. Additionally, for loss of Consor tium Rs.40,000/ – [+10% enhancement
after three years of Pranay Sethi (2017) supra ] x 3 claimants =
Rs.132,000/ – and Rs.15,000/ – (+10% enhancement after three years of
Pranay Sethi supra ) each, shall be paid towards funeral expenses and
loss of estate = Rs.33,000/ -.
22. Let the aforesaid amount along with interest @ 9% p.a. from the date of
filing o f the claim petition deposited before the learned Tribunal, in four
weeks from the date of receipt of copy of this order, to be releas ed to the
widow of the deceased and only the loss of consortium of Rs.4 4,000/ – +
Rs.5,500/- (proportionate share of loss of esta te) each, to the two sons .
23. The appeals, along with pending application, are disposed -off in terms of
the above .

NAJMI WAZIRI, J
JANUARY 14 , 202 1
AB/RW

2021:DHC:159