Oriental Insurance Co.Ltd vs Smt.Chanchal Kataria & Ors

22 & 23

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 8th May, 2012
+        MAC.APP.192/2012

         ORIENTAL INSURANCE CO.LTD.       ..... Appellant
                      Through: Mr. Pradeep Gaur &
                               Mr. Amit Gaur, Advs.

                            versus

    SMT.CHANCHAL KATARIA & ORS.       ..... Respondents
                  Through: Ms.Suman N.Rawat for R1-5.
                           Mr.Abhishek Rana for R-7.
WITH
+   MAC.APP.361/2012

         SMT.CHANCHAL KATARIA & ORS.    ..... Appellants
                     Through: Ms.Suman N.Rawat, Adv.

                            versus

         YOGENDER RANA & ORS.                  ..... Respondents
                     Through:              Mr.Abhishek Rana for R-1 .
                                           Mr.Pradeep Gaur &
                                           Mr.Amit Gaur for R-2

CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
                                     JUDGMENT

G. P. MITTAL, J. (ORAL)

1. MAC. APP. 192/2012 and MAC.APP.361/2012 arise out of a Judgment dated 2.1.2012 passed by the Claims Tribunal, MAC. APP. 192/2012 & 361/2012 Page 1 of 6 whereby a compensation of `32,96,732/- was awarded in favour of Respondents No.1 to 5 in MAC.APP.192/2012. The MCA.APP.192/2012 is for reduction of the compensation and MCA.APP.361/2012 is for enhancement of compensation.

2. The parties do not dispute the finding on negligence.

3. For the sake of convenience, 'the Appellants' in MAC APP No.192/2012 shall be referred to as 'the Appellant' and the Appellants in MAC APP No.361/2012 shall be referred to as 'the Claimants'.

4. Certain facts are admitted. The deceased was working as a Technical Officer (T-5) in the Grade of 6500-200-10500. He died in an accident which took place on 12th February, 2010. The deceased B.S.Kataria's salary was retrospectively revised on account of implementation of the 6th Pay Commission. The Salary Certificate (Ex.PW-3/B) showing the revised salary which was payable to the deceased on the date of the accident, has been duly proved by the examination of PW-3, which is not disputed by the parties.

5. The following are contentions raised on behalf of the Appellant:

(i) A lump sum deduction of 10% was made towards income tax. It should have been on actual basis.

(ii) A compensation of `1.25 lakhs awarded by the Claims Tribunal towards the Loss of Love and Affection was MAC. APP. 192/2012 & 361/2012 Page 2 of 6 excessive and exorbitant.

6. On the other hand, the learned counsel for the Respondents No.1 to 5 submits that the deceased was in permanent employment of a Corporation (Indian Agricultural Research Institute) fully owned by the Government of India. The actual tax paid was being deducted at source @ Rs.1,500/- per month. The Respondents No.1 to 5 proved on record that the deceased was likely to be promoted as Technical Officer(T-6) after an assessment of his five years performance to be calculated with effect from 30th December, 2004. Thus, it is urged that the Claimants were entitled to be granted some addition on account of future prospects on the basis of the judgment in K.R. Madhusudhan & Ors. v. Administrative Officer and Anr., (2011) 4 SCC 689 where Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 was distinguished.

7. I would agree with the learned counsel for the Appellant that the income tax is to be deducted on actual basis and not on any assumption. Similarly, the deduction of tax at source, i.e. `1,500/- per month was not final. Moreover, while awarding compensation in a claims cases, deductions under Section 80-D of the Income Tax Act are not to be taken into account and the compensation is to be uniformly awarded to all the claimants on the basis of their liability towards tax as per the rates fixed under the Income Tax Act from time to time.

8. As far as grant of future prospects are concerned, the deceased B.S. Kataria was aged 54 years on the date of the accident. PW3 deposed that the deceased was to be promoted to T-6 after the assessment of five years performance to be calculated from 30.12.2004. This accident occurred on 12.02.2010. If the promotion to the deceased was to be given as a matter of course, he could have been promoted w.e.f. 01.01.2010 and his salary could have been revised as was done by giving him the benefit of 6th Pay Commission retrospectively w.e.f. 01.01.2006, although he had not been granted the benefit of 6th Pay Commission till his death as its implementation might have been delayed in the organization where the deceased was employed. It is not stated by PW3 as to what was the bench mark for promotion, whether it was subject to availability of posts or otherwise and whether the deceased was eligible for promotion as per the grading awarded to him. K.R. Madhusudhan & Ors.(supra) is distinguishable as in the said case it was established that the revision in the salary was to take place as per the Board Agreement. Thus, the Claimants were not entitled to any addition on account of future prospects as no exception to Sarla Verma (supra) was established.

9. The Salary Certificate (Ex.PW-3/B) proved the deceased's salary as `35,259/-. As the transport allowance of `2,160/- was personal to the deceased and incidental to his employment, after deducting the same, his salary comes to `33,099/-. Thus, MAC. APP. 192/2012 & 361/2012 Page 4 of 6 the annual salary of the deceased comes to `3,97,188/-. On this amount, there was a liability of payment of income tax of about `33,000/-.

10. The loss of dependency, thus, comes to `30,04,551/- (3,97,188/-

33,000/- x 3/4 x11).

11. The Claims Tribunal awarded a sum of `1,25,000/- towards loss of love and affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only ` 25,000/- (in total to all the claimants) under the head of loss of love and affection. Thus, I would reduce the compensation under this head from `1,25,000/- to ` 25,000/- only.

12. After making a provision of `25,000/- towards love and affection and `10,000/- each towards loss of consortium, loss to estate and funeral expenses, the overall compensation comes to `30,59,551/- as against the award of `32,96,732/-. Thus, the compensation stands reduced from `32,96,732/- to 30,59,551/-.

13. The excess amount of `2,37,181/- along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be released to the Appellant Insurance Company.

14. Rest of the amount shall be disbursed/held in the Fixed Deposit in the name of the Claimants in terms of the order passed by the Claims Tribunal.

15. The MAC APP No.192/2012 is allowed in above terms.

16. The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company.

17. The MAC APP No.361/2012 is dismissed.

(G.P. MITTAL) JUDGE MAY 08, 2012 RS/ MAC. APP. 192/2012 & 361/2012 Page 6 of 6