Delhi High Court
Smt. Seema Gautam vs Sh. Sarnam Singh on 9 January, 2008
Author: K Gambhir
Bench: K Gambhir
JUDGMENT
Kailash Gambhir, J.
1. By way of this appeal, the appellant seeks modification of the impugned award so as to claim enhancement in compensation amount of Rs. 10,90,000/-.
2. To deal with the contentions of counsel for the parties, it would be appropriate to give brief summary of the facts which are as under:
On 22.11.2003, the deceased Sh. Gautam Anand was traveling as a pillion rider on two wheeler scooter bearing registration No. DL-6SD 5577 which was driven by his friend Shri Mansoor Ahmad and the same was hit by the truck/offending vehicle bearing registration No. HR-29D-1272 driven in a most rash and negligent manner. The deceased was crushed under the left wheel of the truck and he was declared as 'brought dead' in the hospital.
3. Counsel for the appellant contends that the Tribunal has not taken into account the actual income of the deceased which he would have earned after completion of his training period. Counsel contends that the deceased would have earned a sum of Rs. 12,000/- only after completion of his training. Counsel for the appellant has placed reliance on the testimony of PW-4, Supervisor, under whom the deceased was working with the employer. The other grievance which has been raised by the counsel for the appellant is that the Tribunal has deducted half of the income of the deceased towards personal expenses. The deceased is survived by his young widow and his father. In support of his argument, counsel for the appellant has placed reliance on the judgment of the Apex Court reported in (2004) ACC 494 (SC), Fakeerappa and Anr. v. Karnataka Cement Pipe Factory and Ors.
4. Mr. L.K. Tyagi, counsel for the respondent, on the other hand, refutes the issues raised by counsel for the appellant. Counsel submits that appropriate income as proved by the appellant was taken into consideration and no infirmity can be found in the same. No weightage can be given to the testimony of PW-4 who did not place any document in support of his deposition stating the monthly income of the deceased at Rs. 12,000/- p.m., contends counsel for the respondent. On the aspect of deduction of half of the expenses, Mr. Tyagi contends that the deceased was survived by his widow and his father and, therefore, in such circumstances, he would have certainly spent half of his income towards himself and, therefore, there is no infirmity in the said finding arrived at by the Tribunal.
5. I have heard learned Counsel for the parties and have perused the record. I do not find any force in the arguments of counsel for the appellant so far as the same is concerned challenging the income of the deceased. PW-4 has not placed any document on record or any other material so as to substantiate that the deceased would have earned Rs. 12,000/- on completion of the training. No appointment letter of the deceased has been placed on record. No other document has been placed on record by the appellant which could show that the deceased was on training for a particular period and would have started earning a sum of Rs. 12,000/- after completing the alleged training. Mere bald statement by the said witness can be given no weightage. The contention of counsel for the appellant on this ground is rejected.
6. As regards the other contention of counsel for the appellant that the Tribunal has wrongly deducted half of his income towards personal expenses, I find merit in the same. In the judgment relied upon by counsel for the appellant in Fakeerappa's case (supra), the deceased was of 27 years of age and was survived by his father and mother and in the facts of the said case, the Apex Court has restricted deduction towards personal expenses only to the extent of 1/3rd. The relevant paragraphs of the said judgment is reproduced below:
7. What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction.
8. It has to be noted that the ages of the parents as disclosed in the claim petition were totally unbelievable. If the deceased was aged about 27 years as found at the time of post-mortem and about which there is no dispute, the father and mother could not have been aged 38 years and 35 years respectively as claimed by them in the claim petition. Be that as it may, taking into account special features of the case we feel it would be appropriate to restrict the deduction for personal expenses to one-third of the monthly income. Though the multiplier adopted appears to be slightly on the higher side, the plea taken by the insurer cannot be accepted, as there was no challenge by the insurer to the fixation of the multiplier before the High Court and even in the appeal filed by the appellants before the High Court, the plea was not taken.
7. Relying upon the ratio of the said judgment, I also feel inclined to allow only 1/3rd from the personal expenses of the deceased. Accordingly award of the Tribunal to the said extent is set aside. The personal expenses of the deceased shall be deducted only to the extent of 1/3rd and not half as directed by the Tribunal. The differential amount after taking into account the 1/3rd deductions towards personal expenses from the income of the deceased shall be paid by the respondent from the date of filing of the petition till the date of award along with interest at the rate of 9% p.a. from the date of filing of petition till the date of award and 7.5% from the date of award till realization.
8. With these directions, the appeal stands disposed of.
