Union Of India vs Dr. Rita Pant & Ors.
2009 Latest Caselaw 3157 Del

29
*IN THE HIGH COURT OF DELHI AT NEW DELHI

     +     MAC.APP.No.237/2005 & CM No.5641/2009

                          Reserved on : 12th May, 2009
                         Date of Decision: 13th August, 2009
%

      UNION OF INDIA                      ..... Appellant
                           Through : Ms. Madhu Tewatia and
                                     Ms. Sidhi Arora, Advs.


                      versus

      DR. RITA PANT & ORS.              ..... Respondents
                     Through : Mr. S.C. Dhanda, Adv.


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

1. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.10,35,000/-

has been awarded to the appellants. The appellants are

seeking reduction of the award amount. The respondents

have filed cross-objections to seek the enhancement of the

award amount.

2. The accident dated 9th September, 1998 resulted in the

death of Ashok Pant. The deceased along with his wife was

travelling in a TSR on Janpath, New Delhi when the Air Force

Canter bearing No.95-D 100374P hit the TSR due to which

the TSR overturned resulting in serious head injuries to the

deceased. The deceased was taken to RML Hospital and

thereafter shifted to AIIMS where the deceased succumbed

to the injuries on 17th September, 1998. The deceased's wife

also suffered injuries in the said accident.

3. The deceased was aged 48 years at the time of the

accident and was survived by his widow, one minor

daughter, one minor son, mother and disabled sister who

filed the claim petition before the learned Tribunal.

4. The deceased graduated from Delhi University in 1972

and thereafter joined Institute of Hotel Management,

Catering and Nutrition, Pusa, New Delhi in 1975 and

completed the Diploma in Hotel Management. In 1983, the

deceased joined Culinary Institute of America and completed

a course there. The deceased worked for some time with

Hotel Oberoi Intercontinental and thereafter joined Hotel

Maurya Sheraton, New Delhi where he worked till January,

1991. In January, 1991, the deceased joined Taj Group of

Hotels and was posted in Japan. The deceased worked with

Taj Group of Hotels till October, 1995. In October, 1995, the

deceased left the job and returned to India and set up his

own catering business in the name and style of Food

Passions Inc., New Delhi.

5. During his lifetime, the deceased won many awards and

medals. He had the unique distinction for cooking personally

for the Hon'ble Giani Zail Singh, President of India, Smt.

Indira Gandhi, Shri Rajiv Gandhi, King Carlos and Queen

Sophia of Spain, Queen Elizabeth and Prince Philip of UK, Shri

Henry Kissinger of USA and other VIPs and dignitaries.

6. Respondent No.1 appeared in the witness box as PW-1

and deposed that the deceased was earning about

Rs.1,00,000/- per month. PW-1 proved the MLC, High School

Certificate, Graduation Certificate, Diploma in Hotel

Management and other certificates of the deceased

regarding the professional qualifications as Ex.PW1/1 to

Ex.PW1/13. PW1 also proved the Certificates of

Commendation issued to the deceased and the certificates

issued by Taj Mahal Hotel, Maurya Sheraton Hotel as

Ex.PW1/14 to Ex.PW1/34. PW-1 also produced the

newspaper cuttings pertaining to the articles of the

deceased, pamphlet of Welcome Group Award and the

articles written by the deceased in various magazines. PW-1

deposed that the deceased worked abroad in New York,

Japan, Bangkok and he represented India in different food

festivals and was awarded one gold medal and one bronze

medal. PW-1 further proved that the deceased was drawing

¥2,70,000/- equivalent to Rs.1,00,000/- per month from Taj

Group of Hotels while posted at Japan. PW-1 further deposed

that the deceased returned to India in 1995 to set up his own

business in the name of Food Passions Inc., Delhi.

7. Record Clerk from RML Hospital appeared as PW-2 and

proved the MLC of the deceased. PW-3 from P.S. Tuglak

Road proved FIR-Ex.PW3/1. Record Clerk from Department

of Forensic Medicines, AIIMS, New Delhi appeared as PW-4

and proved the post-mortem report-Ex.PW4/1.

8. The income of the deceased for a period of four and a

half years from March, 1991 up to September, 1995 was

¥1,18,80,000/- equivalent to about Rs.80,000/- per month as

per Ex.PW1/21. However, the learned Tribunal did not

consider the said amount on the ground that the income in

foreign currency cannot be the basis of the income of the

deceased in India. The learned Tribunal took into

consideration the Income Tax Return of the deceased for the

year 1991-92 according to which the monthly salary of the

deceased was Rs.13,333.33. The learned Tribunal took the

average monthly income of the deceased to be Rs.13,333.33.

1/3rd was deducted towards personal expenses of the

deceased and the dependency of the appellants was taken to

be Rs.8,500/-. Multiplier of 10 was applied by the learned

Tribunal to compute the loss of dependency at

Rs.10,20,000/-. Rs.15,000/- has been awarded by the

learned Tribunal towards loss of estate and consortium and

the total compensation computed is Rs.10,35,000/-.

9. The only ground urged by the appellant at the hearing

of this appeal is that the amount awarded by the learned

Tribunal is excessive as the deceased was not employed at

the time of the accident.

10. The respondents/claimants have filed cross-objections

seeking enhancement of the award amount on the ground

that the deceased was earning Rs.1,00,000/- per month in

his last employment with Taj Group of Hotels which should

be taken into consideration for computation of compensation

on the basis of his earning capacity. The second ground of

challenge is that the personal expenses of the deceased be

reduced from 1/3rd to 1/4th as the deceased has left behind

five dependents. The third ground raised by the respondents

is that the deceased was aged 48 years at the time of the

accident and the appropriate multiplier is 15 whereas the

learned Tribunal has applied the multiplier of 10. The fourth

ground of challenge is that no compensation has been

awarded towards loss of love and affection.

11. The qualification, occupation and income of the

deceased has been proved by PW-1. The deceased passed

Indian School Certificate Examination from St. Columbia's

High School, Alexandra Place, New Delhi in 1967 (Ex.PW1/4).

The deceased graduated from Delhi University in 1972

(Ex.PW1/2). The deceased thereafter completed three year

Diploma course in Hotel Management, Catering and Nutrition

from Institute of Hotel Management, Catering and Nutrition,

Pusa, New Delhi in 1975 (Ex.PW1/3 and Ex.PW1/5). The

deceased joined Oberoi Group of Hotels in July, 1975

(Ex.PW1/9 and Ex.PW1/10). The deceased participated in

Food and Beverage Training Programme in September, 1983

at the Sheraton Centre Hotel, New York (Ex.PW1/11 and

Ex.PW1/12). The deceased also participated in Food

Preparation and Service Management Course, New Delhi in

May, 1990 (Ex.PW1/7). The deceased also completed six

week advanced Culinary Arts Programme at Hyde Park, New

York from Culinary Institute of America in September, 1983

(Ex.PW1/8). The deceased was awarded certificate of

commendation by Maurya Sheraton Hotel and Towers in

1990 (Ex.PW1/14 and Ex.PW1/15). The deceased was

awarded gold medal in a Restaurant Contest in World Food

Festival in Japan in 1988 (Ex.PW1/16). The deceased was

also a member of Cookery and Food Association, London

(Ex.PW1/18). The deceased was also elected as Master

Craftsman Craft Guild of Chefs (Ex.PW1/13 and Ex.PW1/19).

The deceased worked with Maurya Sheraton Hotels and

Towers from 1977 to 1990 and held various positions and the

last position was that of Chef for three years. The employer

highly appreciated his services as per certificate -

Ex.PW1/23. The deceased participated in Indian Food

Promotion held at Royal Orchid Sheraton Hotel & Towers in

Bangkok in September, 1987 (Ex.PW1/24 and Ex.PW1/25).

The deceased also successfully participated in World

Restaurant Show on Hot and Cold Food Display at Sopparo,

Japan in 1998. Maurya Sheraton Hotel recorded the

appreciation for the services of the deceased vide

certificates - Ex.PW1/27 to Ex.PW1/30. The deceased was

awarded a gold medal at the Restaurant Contest at

International Culinary Art Contest at Sapporo, Japan in 1998.

The deceased was selected for outstanding performance

award for the year 1987-88 by Maurya Sheraton in October,

1988 and he was also given a performance award for the

same (Ex.PW1/31). The deceased achieved the standing of

Gourmet Society lecturer for Indian Cuisine from Culinary

Institute of America (Ex.PW1/32). The deceased also wrote

many articles for the magazines and his work was also

reported in newspapers.

12. The deceased worked with Taj Group of Hotels as

Executive Chef for four and a half years from March, 1991 to

September, 1995 drawing a salary of ¥1,18,80,000/- after tax

deductions, which is equivalent to approximately to

Rs.80,000/- per month (Ex.PW1/21). The employment

agreement dated 15th September, 1990 between the

deceased and Taj Group of Hotels is Ex.PW1/22. As per

certificate - Ex.PW1/20, the employer was very satisfied with

his work.

13. The learned counsel for the respondents/claimants

submit that the deceased was earning ¥1,18,80,000/- after

deduction of tax which is equivalent to Rs.80,000/- per

month up to September, 1995 and he left the employment

on his own to start his catering business and he would have

earned more than the said amount. It is further submitted

that even if the deceased would not have succeeded in his

private business, he could have always gone back to work as

Executive Chef with any five star hotel and would have

earned more than his last drawn salary. The learned

counsel, therefore, submits that the earning capacity of the

deceased be taken to be Rs.80,000/- per month.

14. The learned counsel for the claimants refers and relies

upon the judgments of Vijayalakshmi vs. Raju Shekaran,

1995 ACJ 405, DTC vs. Sudharshan Yadam, 1995 ACJ

393, Hazi Zenullah Khan vs. Nagar Mahapalika, 1994

ACJ 993, Susamma Thomas vs. Narayana Kurup, 1992

ACJ 1034, A.C. Gupta vs. New India Insurance Co.,

2002 ACJ 312 and United India Insurance Co. Ltd. vs.

Patricia Mahajan, (2002) 6 SCC 281 in support of the

preposition that the earning capacity of the deceased should

be taken on the basis of his potential to earn.

15. The earning potential of the deceased can be

determined by taking into consideration his qualifications,

positions held by him and the last drawn salary. The

presumption as to the earning capacity of the deceased can

be drawn from the aforesaid facts. The guidance for drawing

such presumption can be taken from Section 114 of the

Indian Evidence Act which is reproduced hereunder:-

"Section 114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case"

16. In a recent article in GT Weekenter, Gomantak Times of

14th June, 2009, it has been reported that the Executive Chef

at Taj, Mumbai is paid more than the General Manager. It is

further reported that there is shortage of Chefs world over

and the job of Chef is highly paid. In another article titled

Rude Food By Vir Sanghvi in Hindustan Times Sunday

Magazine of 19th July, 2009, it is reported that top Chefs

receive huge salaries. It is further reported that the

restaurants Bukhara and Dum Pukht in Maurya Sheraton

have been rated as world's best restaurants which is not an

accident or fluke but it emerges from the care and attention

paid to the Chefs. It is further reported that the best

restaurants in metropolitan cities such as Smokehouse Grill,

Olive, Aunes and Caperberry are all Chef-based restaurants.

It is reported that ITC believes that great Chefs are artists

and must be treated as such. Great Chefs not only master

traditional recipes but invent new dishes.

17. The deceased was a very highly qualified Chef.

Considering the qualifications of the deceased, namely,

Graduation in Science from Delhi University, Diploma in Hotel

Management, Catering and Nutrition from Institute of Hotel

Management, Pusa, New Delhi and from Hotel Management

School of Oberoi Hotels, the professional experience of the

deceased initially with Hotel Oberoi Inter-Continental, then

with Maurya Sheraton Hotel and Towers from 1977 to 1990

and thereafter as Executive Chef with Taj Group of Hotels

from 1991 to October, 1995, certificates and awards won by

the deceased in India and abroad and also considering that

the Executive Chef is one of the highest paid officials in five

star Hotels, it can be presumed that the deceased had the

capacity to earn at least Rs.20,000/-. The learned Tribunal

did not consider these facts at all to determine the earning

capacity of the deceased. The learned Tribunal further erred

in taking into consideration the income of the deceased in

1991 to be the basis for determining the income of the

deceased in 1998.

18. The income of the deceased at the time of the accident

is, therefore, taken to be Rs.20,000/-. Since the deceased

did not have a stable income at the time of the death, future

prospects are not taken into consideration. The deceased

has left behind five legal representatives and, therefore,

following the judgment of the Apex Court in the case of

Sarla Verma Vs. Delhi Transport Corporation, 2009 (6)

Scale 129, the personal expenses of the deceased are taken

to be 1/4th and the dependency of the

representatives/claimants is taken to be 3/4th. The deceased

was aged 48 years at the time of the accident and the

appropriate multiplier is 13. The loss of dependency of the

claimants is, therefore, computed to be Rs.23,40,000/-

[(Rs.20,000 - Rs.5,000) x 12 x 13]. The learned Tribunal has

awarded Rs.20,000/- towards loss of consortium and loss of

estate. No amount is awarded towards loss of love and

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

affection and Rs.5,000/- is awarded towards funeral

expenses. The total compensation of the claimants is taken

to be Rs.23,75,000/- (Rs.23,40,000 + Rs.20,000 + Rs.10,000

+ Rs.5,000).

19. The appeal is dismissed. The cross objections are

allowed and the award amount is enhanced from

Rs.10,35,000/- to Rs.23,75,000/-. The learned Tribunal has

awarded interest @9% per annum which is not disturbed on

the original award amount of Rs.10,35,000/-. However, on

the enhanced amount, the rate of interest shall be @7.5%

from the date of filing of the petition till payment. The

shares of the claimants on the enhanced award amount shall

be in the same proportion as per the original award amount.

The appellant is directed to deposit the award amount with

the learned Tribunal within 30 days. Upon such deposit

being made, the learned Tribunal is directed to release 10%

of the award amount to each of the claimants. The

remaining amount is directed to be kept in fixed deposit for a

period of five years on which periodical interest be paid to

the claimants but no loan or withdrawal be permitted without

the permission of the learned Tribunal.

J.R. MIDHA, J AUGUST 13, 2009 aj