Delhi High Court
Smt. Anita Arora And Ors. vs Shri Sanjay And Ors. on 11 December, 2007
Author: K Gambhir
Bench: K Gambhir
JUDGMENT
Kailash Gambhir, J.
1. A short controversy is involved in the present appeal as the appellant is seeking enhancement in the compensation amount as awarded by the Tribunal.
2. On advance notice Mr. Kamal Chaudhary, Advocate appears for respondent No. 3. Respondents 1 & 2 are the driver and owner of the offending vehicle. The service on respondents 1 & 2 is dispensed with as the offending vehicle is duly insured with the respondent No. 3 and respondent No. 3 is the only contesting party in the present appeal.
3. Both the counsel for the parties state that the matter may be taken up for final disposal.
4. The brief facts relevant for deciding the present appeal are that on 2.3.2006 at about 11.05 p.m. the deceased Shri Rajesh Arora was hit by motor cycle No. DL-4S-AW-9418, driven by the respondent No. 1 which came from the opposite side in a rash and negligent manner at Mukherjee Nagar, Bandh Road due to which the deceased got seriously injured and succumbed to his injuries.
5. Counsel for the appellant has mainly contended that the Tribunal has not taken into consideration the increase in inflation and cost of living, therefore, no increase on account of inflation and increase in price index has been taken into consideration by the Tribunal. Counsel further contends that the Tribunal has wrongly taken into consideration 1/3rd income of the deceased towards personal expenses. The appellants are also aggrieved on account of the meager amount of compensation of Rs. 20,000/- towards loss of consortium besides not granting any compensation to the small children for the loss of love and affection.
6. Per contra, Mr. Kamal Chaudhary, counsel for respondent No. 3 contends that there is no infirmity or illegality in the impugned award passed by the Tribunal. Placing reliance on the judgment of the Apex Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta , counsel for the respondent contends that in the said case also the Apex Court has not taken any note of such increase in the price index or inflation, therefore, in accordance thereof no increase in the income of the deceased can be taken into consideration in the present case also. Counsel also contends that the Tribunal has rightly deducted 1/3rd income towards personal expenses of the deceased.
7. I have heard counsel for the parties and have perused the record also.
8. Perusal of the award shows that the deceased was running a STD Booth and a General Store. The appellant had proved the income tax return of the deceased for the assessment year 2005-2006 and the income of the deceased was assessed on the basis of the said assessment year at Rs. 81,200/-. For claiming any increase in the income in the said business, appellants should have placed some material on record but perusal of the award shows that no such material was placed on record. The Apex Court in the recent judgment in Bijoy Kumar Dugar's case (Supra) has discussed the said issue threadbare. It would be appropriate to refer to the observation of the Apex Court as under:
The mere assertion of the claimants that the deceased would have earned more than Rs. 8000 to Rs. 10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be.
9. In the light of the above position, I do not find any force in the argument of counsel for the appellant claiming that the Tribunal should have taken into consideration the inflationary trends and price index for assessing the correct income of the deceased in a span of 13 years period. I do not find any infirmity in the award in this regard.
10. As regards the last contention of the counsel for the appellant that the Tribunal has awarded a meager amount of Rs. 20,000/- towards the loss of consortium and the non grant of any amount towards loss of love and affection, I find some force i the argument of counsel for the appellant. In this case the deceased at the time of the accident was of 47 years of age and he is survived by his wife, one daughter and one minor son. In the recent judgment of the Apex Court in Mohinder Kaur and Ors. v. Hira Nand Sindhi (Ghoriwala) and Anr. 2007 ACJ 2123, the Apex Court has upheld the award of Rs. 50,000/- towards loss of consortium and has allowed the interest @ 9% p.a. from the date of filing of the petition. The date of filing of the petition in the said case was 20.5.1982, while in the present case the date of accident is 2.3.2006. The Division Bench of Madras High Court in United India Insurance Co. Ltd. v. Sulocahan and Ors. III (2007) ACC 50 (DB), has awarded Rs. 50,000/- towards the loss of consortium and Rs. 25,000/- each to the daughter and mother of the deceased towards loss of love and affection.
11. Considering the import of the aforesaid judgments, I enhance compensation of Rs. 20,000/- to Rs. 50,000/- towards loss of consortium and for loss of love and affection, I grant Rs. 25,000/- each to the children.
12. Counsel for the appellant states that the respondent insurance company has already complied with the award. Let differential amount of Rs. 80,000/- be paid by the respondent with up-to-date interest @7.5 % p.a. from the date of filing of the petition till realisation.
13. With these directions, appeal stands disposed of.
