Sh. Subhash Sharma & Ors. vs Sh. Satish Kumar & Ors.
2009 Latest Caselaw 1195 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         FAO No. 591/2002

                         Judgment reserved on: 21.2.2008

                         Judgment delivered on: 6.4.2009


Sh. Subhash Sharma & Ors.                         ..... Appellant.
                         Through: Mr. O.P. Mannie, Adv.

                         versus

Sh. Satish Kumar & Ors                       ..... Respondents

Through: Mr. Manoj Ranjan Sinha, Adv.

for respondent no.3.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?                           No

2.    To be referred to Reporter or not?                        No

3.    Whether the judgment should be reported                   No
      in the Digest?



KAILASH GAMBHIR, J:

1. The present appeal arises out of the award dated 23/7/2000

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 7,40,000/- along with interest @ 9% per

annum to the claimants.

2. The brief conspectus of the facts is as follows:

3. On 27/5/1997 Maj. Subhash Sharma was returning from

AIIMS to his house located at Noida on his two-wheeler scooter

bearing registration no. UP 15 E 4997 with his wife Smt. Prabha

Sharma after visiting a relation who was hospitalized in AIIMS. He

was driving the said scooter while his wife was sitting on the

pillion seat. At around 2:00 pm they crossed Apollo Hospital at

Mathura Road and had covered a distance of 500 mtrs. Suddenly,

a Maruti car bearing registration no. DL 2 CE 6131 coming from

behind rammed into the scooter being driven by Maj. Subhash

Sharma near petrol pump at Mathura Road. Due to forceful

impact both husband and wife fell on the left side and received

multiple injuries. Mrs. Prabha later succumbed to her injuries. A

claim petition was filed on 11.7.1997 and an award was passed

on 23/7/2000. Aggrieved with the said award, enhancement is

claimed by way of the present appeal.

4. Sh. S. Janani counsel for the appellants contended that the

tribunal erred in assessing the income of the deceased at Rs.

7,000/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the deceased at Rs. 8764/- per month. It was urged by

the counsel that the tribunal erred in not considering future

prospects while computing compensation as it failed to

appreciate that the deceased would have earned much more in

near future as she was of 44 yrs of age only and would have lived

for another 20yrs had she not met with the accident. It was also

urged by the counsel that the tribunal did not consider the fact

that due to high rates of inflation the deceased would have

earned much more in near future and the tribunal also failed in

appreciating the fact that even the minimum wages are revised

twice in an year and hence, the deceased would have earned

much more in her life span. The counsel contended that the

tribunal erred in not awarding adequate compensation towards

non-pecuniary damages. The counsel also urged that the tribunal

erred in not awarding compensation towards expenses incurred

in transporting the deceased from the accident spot to the

hospital and further expenses incurred in transporting her dead

body after she expired from hospital to Noida and thus claimed

Rs. 3,500/- in this regard. The counsel also contended that the

tribunal erred in not awarding compensation for the tuition of the

children which they would not have paid had the deceased been

alive.

5. Per contra learned counsel for the respondents have refuted

the contention of the appellants.

6. I have heard learned counsel for the parties and perused

the record.

7. The appellants claimants had brought on record the salary

certificate, Ex. PW3/A and Sh. Gopal Krishan Sr. Accountant of the

Apeejay School, Noida, where the deceased was employed as a

primary teacher proved the said salary certificate. According to

the said salary certificate the deceased's date of birth was

9/7/1953 and her gross salary at the time of death was Rs. 5130/-

pm in the pay scale of Rs. 4500-125-7000/-. The tribunal

considering that the deceased was in regular employment of the

said school and also considering that she would have earned

increments over the years had she not met with her untimely

death assessed the income of the deceased at Rs. 7,000/- pm. It

is no more res integra that mere bald assertions regarding the

income and the future prospects of the deceased are of no help

to the claimants in the absence of any reliable evidence being

brought on record. In the instant case the appellants have duly

proved the income and the future prospects of the deceased and

after considering all these factors, I am of the view that the

tribunal has rightly assessed the income of the deceased at Rs.

7,000/- pm. The deceased on the date of accident was of 44

years of age and would have served the school till the age of 60

years. The petitioner in the present petition has claimed salary of

Rs. 12,250/- by the notional salary but in the absence of any

evidence the same cannot be considered. However, safely the

salary of Rs. 7,000/- can be accepted which will also include the

future prospects of the deceased.

8. As regards the contention of the counsel for the appellant

that the tribunal erred in not allowing tuition expenses, I feel that

there is no merit in the said contention as the tribunal

considering that the appellants suffered monetary loss on

account of death of Mrs. Prabha and had suffered loss of services

which she was rendering to them and for when they will have to

take assistance of others, allowed Rs. 50,000/- under the said

head although same is not a conventional head of damages.

Furthermore, nothing has come on record to prove that the

appellants were incurring Rs. 1,000/- per month on tuition.

Therefore, I do not feel inclined to award separate compensation

for tuition expenses.

9. On the contention that the tribunal has erred in not granting

adequate compensation towards loss of love & affection, funeral

expenses and loss of estate, whereas, no compensation has been

granted towards loss of consortium and the loss of services,

which were being rendered by the deceased to the appellants. In

this regard compensation towards loss of love and affection is

enhanced to Rs. 20,000/-; compensation towards funeral

expenses is enhanced to Rs. 10,000/- and compensation towards

loss of estate is enhanced to Rs. 10,000/-. Further, Rs. 50,000/- is

awarded towards loss of consortium.

10. As regards the contention that the tribunal erred in not

allowing transportation expenses, I feel that the compensation as

enhanced herein above will take care of the said expenses as

well. Thus, no separate amount is awarded for the said expenses.

11. As far as the contention pertaining to the award of amount

towards mental pain and sufferings caused to the appellants due

to the sudden demise of the deceased and the loss of services,

which were being rendered by the deceased to the appellants is

concerned, I do not feel inclined to award any amount as

compensation towards the same as the same are not

conventional heads of damages.

12. On the basis of the above discussion, the income of the

deceased after considering future prospects would come to Rs.

7,000/-. After making 1/2 deductions the monthly loss of

dependency comes to Rs. 3,500/- and the annual loss of

dependency comes to Rs. 42,000/- per annum and after applying

multiplier of 15 it comes to Rs. 6,30,000/-. Thus, the total loss of

dependency comes to Rs. 6,30,000/-. After considering Rs.

1,40,000/-, which is granted towards non-pecuniary damages, the

total compensation comes out as Rs. 7,70,000/-.

13. In view of the above discussion, the total compensation is

enhanced to Rs. 7,70,000/- from Rs. 7,40,000/- with interest @

7.5% per annum on the enhanced compensation from the date of

filing of the petition till realisation. The differential amount should

be paid to the appellants in equal proportion by the respondent

insurance company.

14. With the above direction, the present appeal is disposed of.

6.4.2009                                 KAILASH GAMBHIR, J