Girish Kumar Kanojia & Ors vs Vinod Kumar & Ors
2009 Latest Caselaw 1747 Del

12
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +     MAC.APP. 4/2007

                                  Date of Decision: 29th April, 2009
%

      GIRISH KUMAR KANOJIA & ORS        ..... Appellants
               Through : Mr. Anil Garg, Adv.

                         versus

      VINOD KUMAR & ORS            ..... Respondents
               Through : Mr. Varun Hans, Adv. for R - 1.
                         Mr. S.L. Gupta, Adv. for R - 3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 Yes
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                Yes

3.      Whether the judgment should be                        Yes
        reported in the Digest?

                         JUDGMENT (Oral)

1. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.3,20,000/- has

been awarded to the appellants. The appellants seek

enhancement of the award amount.

2. The accident dated 17th May, 2000 resulted in the

death of Shyam Lal Kanojia aged 44 years. The deceased

was survived by his widow, two sons and a daughter who

filed claim petition before the learned Tribunal. The

deceased was working as supervisor with a dry cleaning shop

and was earning Rs.4,000/- per month. The learned Tribunal

took the income of the deceased equal to the minimum

wages of Rs.2,500/- per month. 1/3rd deducted towards the

personal expenses of the deceased and the multiplier of 15

was applied to compute the loss of dependency at Rs.3 Lakh.

Rs.5,000/- was awarded towards loss of love and affection

and Rs.10,000/- towards loss of consortium and Rs.5,000/-

has been awarded for funeral expenses. The total

compensation awarded is Rs.3,20,000/-.

3. The appellants seek enhancement on the following

grounds: -

(i) The income of the deceased be taken to be

Rs.4,000/- proved by sufficient evidence.

(ii) The future prospects of the deceased be taken

into consideration.

(iii) The personal expenses of the deceased be

deducted at the rate of 1/4th instead of 1/3rd

considering the number of dependent family

members of the deceased.

4. With respect to the income of the deceased, the

appellant produced three witnesses. PW- 1 is the employer

of the deceased who deposed that the deceased was working

with him as supervisor at a salary of Rs.4,000/- per month for

the last 5 - 6 years. He further deposed that the deceased

joined at a salary of Rs.2.500/- per month and was given

annual increments and his salary would have increased if he

had not died in the accident in question. The landlord of

deceased also appeared in the witness box as PW- - 3 and

deposed that the deceased was his tenant and was paying

monthly rent of Rs.1,400/- per month. The deceased's son

appeared in the witness box and deposed that the deceased

was working as supervisor in a dry cleaning shop and was

earning Rs.4,000/- per month. He further deposed that his

father was also maintaining the bank account.

5. There is sufficient evidence on record that the

deceased was working as supervisor in dry cleaning shop and

was earning Rs.4,000/- per month for the last 5 - 6 years.

The deceased had joined at a salary of Rs.2,500/- per month

which has gradually increased and same would have further

increased.

6. Considering the age of the deceased, the future

prospects are taken into consideration by adding 30% of the

salary as future prospects and the average income of the

deceased is taken to be Rs.5,200/- per month (Rs.4,000 +

30% of Rs.4,000).

7. The learned Tribunal has deducted 1/3rd towards the

personal expenses of the deceased. The deduction of 1/3 rd is

not a thumb rule where the number of dependent legal

representatives of the deceased are more than 3 and upto 6,

the deduction of 1/4th towards the personal expenses is fair

and reasonable. The personal expenses of the deceased are,

therefore, taken to be 1/4th instead of 1/3rd.

8. The loss of dependency of the deceased is computed to

be Rs.7,02,000/- (Rs.3,900 X 12 X 15).

9. The learned Tribunal has fairly awarded Rs.5,000/-

towards loss of love and affection, Rs.10,000/- towards loss

of consortium and Rs.5,000/- towards funeral expenses. The

total compensation to the appellants is computed at

Rs.7,22,000/- (Rs.7,02,000 + Rs.5,000 + Rs.10,000 +

Rs.5,000).

10. The appeal is allowed. The compensation awarded to

the claimants is enhanced from Rs.3,20,000/- to

Rs.7,22,000/- along with interest thereon at the rate of 7.5%

per annum from the date of filing of the petition till payment.

11. The shares of the appellant in the award amount shall

be as under: -

             Appellant No.4       :         70%
             Appellant Nos.1 to 3 :         10% each.

12. Respondent No.3 is directed to deposit the enhanced

amount along with interest with the learned Tribunal within

30 days.

13. Upon such deposit being made, the learned Tribunal is

directed to release 10% of the enhanced award amount

along with interest to each of the appellants. With respect to

appellant No.4, 60% of the enhanced award amount along

with proportionate interest thereon shall be kept in fixed

deposit for a period of 5 years on which periodical interest be

paid to her, but no loan, advance or premature withdrawal be

permitted without prior permission to the learned Tribunal.

14. The cheque towards fixed deposit be released first and

the remaining cheques be released only after the appellant

No.4 produces the original fixed deposit receipts and the duly

attested copy of the same by the bank is filed before the

learned Tribunal.

15. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signatures of Court Master.

J.R. MIDHA, J

APRIL 29, 2009 mk