* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: April 29, 2010
Date of Order: May 10, 2010
+ FAO No. 304/1999 & CM Appl. No. 4136/2008
% 10.05.2010
SOHAN DEVI & ANR ...Petitioners
Through: Ms. Aruna Mehta, Advocate
Versus
ABDUL QAYAAM & ORS. ...Respondents
Through: Mr. Kamaldeep, Advocate for R-3
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
By the present appeal, the appellants have sought enhancement in compensation awarded by learned MACT vide its award dated 15th February, 1999.
2. Learned MACT considered the age of the deceased as 40 years and the income of deceased as Rs. 1806/- p.m., on the basis of minimum wages of a skilled workman, and after deducting 1/3rd from his income, for personal expenses, applied a multiplier of 14, and awarded a compensation of Rs. 2,01,600/-. The Tribunal also awarded a sum of Rs. 7,000/- towards loss of consortium.
FAO No. 304/1999 Page 1 of 4
3. It is submitted by the appellants that the Tribunal did not take into account the actual income of the deceased about which evidence had come on record. He was earning Rs. 4,000/- to Rs. 4,500/- p.m. and the mere fact that the deceased was not paying income tax should not have resulted into not believing the oral testimony.
4. It was deposed by claimant before the Trial Court that the deceased was running a factory of moulding. He was doing his business from his self- owned premises. He was earning around Rs. 4,000/- to Rs. 4,500/- per month. The only evidence of income produced before the Tribunal was oral testimony of the claimant. The documents produced before the Trial Court viz factory licence, telephone bills and a Shop and Establishment Act receipt, were not reflective of income of deceased.
5. Whosoever runs business, whether at low scale or at higher scale, maintains account books of the business which reflect his transactions with customers or clients. The account books also contain the account of material purchased, amount spent on labour and receipts from sale. On the basis of these account books, a Profit & Loss Account is prepared at the end of the year by every professional/businessman which reflects his annual income. Where a businessman or a professional does not maintain any account books and does not prepare a Profit & Loss Account, this will only reflect that the entire business was at such a small scale that the transactions of the entire year could be memorized by a person. If the business is at that negligible scale that no account books are maintained, no Profit & Loss Account is FAO No. 304/1999 Page 2 of 4 prepared, no Balance Sheet is prepared, the Court cannot depend upon the oral testimony given by the claimant which has to be self serving. In all such cases of self-employed persons who are working as Carpenter, mason, moulder or in any other trade, the Court can only take into account the wages payable to skilled workman under the statue and the oral testimony of claimant given about the income of deceased can be of no help because normally at the time of claim of compensation, the income of deceased is inflated. Reverse is the case in all cases where maintenance is to be paid, the income is accordingly reduced to a minimum level. Thus the objective assessment of income of deceased could not be made, and the income was taken as minimum wages. The Tribunal rightly took into account the minimum wages as the basis for calculations. However, the Tribunal erred in not considering that over the period of time the minimum wages keep rising due to inflation and fall in the value of rupee. In view of judgments -
(i)"Kanwar Devi Vs. Bansal Roadways, 2008 ACJ 2182" and (ii) "National Insurance Co. Vs. Renu Devi, 111 (2008) ACC 134", I consider that Rs. 900/- per month (50%) should have been added in the income towards inflation. Thus, minimum wages of the deceased should have been taken as Rs. 2,700/- per month. 1/3rd should have been deducted toward personal expenses. The, monthly contribution of the deceased towards family would have been Rs. 1,800/- per month and annual contribution towards family would have been Rs. 1,800/- x 12 = Rs. 21,600/-. The deceased was aged about 40 years at the time of his death. As per Sarla FAO No. 304/1999 Page 3 of 4 Verma's case, a multiplier of 15 was just and reasonable. I, therefore, consider that a multiplier of 15 should have been used by the Tribunal instead of 14. Thus, the total compensation payable to the deceased would be Rs. 3,24,000/- + Rs. 7,000/- as loss of consortium, as already awarded by the Tribunal, + Rs. 4,000/- towards expenses for last rites. Thus, a total of Rs. 3,35,000/- (Rupees Three Lacs Thirty Five Thousand only) would be the just and reasonable compensation in this case. I find that the Tribunal has awarded 12 per cent interest. Looking into the fact that accident had taken place in the year 1994, I consider that an interest @ 10% was just and proper. Thus, award passed by the Tribunal is modified. The appellants are held entitled to a compensation of Rs. 3,35,000/- (Rupees Three Lacs Thirty Five Thousand only) with 10 per cent interest from the date of claim. The respondent insurance company is directed to pay the difference in amount, as awarded by the Tribunal and the enhanced amount, within 30 days to the appellants Smt. Sohan Devi and Shri Purshotam.
May 10, 2010 SHIV NARAYAN DHINGRA J.
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FAO No. 304/1999 Page 4 of 4