Santosh Kumar Abrol & Anr. vs New India Assurance Co.Ltd. & Ors
2009 Latest Caselaw 509 Del

53 & 54
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

           MAC.APP. 257/2004 and MAC.APP. 282/2004


                                  Date of decision:12th February, 2009
%

+      MAC.APP. 257/2004

       SANTOSH KUMAR ABROL & ANR.       ..... Appellant
                   Through : Mr. Navneet Goyal, Adv.

                      versus

       NEW INDIA ASSURANCE CO.LTD. & ORS...... Respondent
                     Through : Mr. Pankaj Seth, Adv.


                                    AND


+      MAC.APP. 282/2004

       THE NEW INDIA ASSURANCE CO.LTD.       ..... Appellant
                     Through : Mr. Pankaj Seth, Adv.

                      versus

       SANTOSH KUMAR ABROL & ORS.       ...... Respondent
                   Through : Mr. Navneet Goyal, Adv.


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

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

2.       To be referred to the Reporter or not?

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

                              JUDGMENT (Oral)

1. These appeals arise out of the award dated 10 th

February, 2004 passed by the Learned Tribunal whereby

compensation of Rs.5,41,000/- has been awarded. Both the

parties have challenged the award.

2. MAC.APP.No.282/2004 has been filed by New India

Assurance Company Limited, hereinafter referred to as

"Insurance Company" seeking reduction of the award amount.

3. MAC.APP.No.257/2004 has been filed by the claimants

seeking enhancement of the award.

4. On 10th October, 2000, the deceased Mr. Arun Abrol was

going on his motor cycle at Najafgarh Road when he was hit

by the Tempo bearing No.DL IL A-6777 resulting in grievous

injuries which resulted in his death.

5. The deceased was aged 24 years at the time of his

death and had a business of assembly, sale, repair and

service of computers earning Rs.83,433/- per annum at the

time of his death.

6. The deceased was survived by his parents aged 62 years

and 57 years at the time of the accident. The parents were

dependent on the deceased. The parents of the deceased

filed the claim petition before the Learned Tribunal claiming

the compensation of Rs.20 Lakh.

7. At the trial, the father of the deceased appeared as PW-5.

He deposed that the deceased was carrying on the computer

business since 1996. He further deposed that the deceased

was Income Tax payee. The Income Tax returns along with

statement of account and balance sheet for the years 1997-

1998, 1998-1999, 1999-2000 and 2000-2001 were proved by

PW-5 as Ex.PW5/1 to Ex.PW5/4. The deceased was carrying on

the business in the name of „Cybertronics System‟. Some of

the purchase bills were produced and marked as mark „A1‟ to

„A5‟. The deceased got the training in computers from his

elder brother Vikram Abrol who was initially doing the business

of computers in Delhi. Later on the deceased‟s brother,

Vikram Abrol left for USA whereupon the deceased was looking

after the entire business. PW - 5 further deposed that if the

deceased would have survived in the accident, his monthly

income would have risen to Rs.30,000/- per month.

8. The Learned Tribunal computed the compensation by

taking the Income Tax return, Ex.Pw5/1 for the assessment

year 2000-2001. The income of the deceased was taken at

Rs.6,000/- per month. 1/3rd was deducted towards the

personal expenses of the deceased. The future prospects

were computed by taking the average of Rs.6,000/- and

double of it, i.e., Rs.12,000/-. Multiplier of 8 was applied

considering the age of the mother which was 57 years at the

time of the accident. The compensation was computed at

Rs.5,76,000/-. Rs.15,000/- were awarded towards funeral

expenses, making the total compensation of Rs.5,91,000/-.

9. The claimants are seeking the enhancement of the

award on the following two grounds: -

(i) Income of the deceased at the time of his death as

per the Income Tax return, Ex.PW5/1 for the

assessment year 2000-2001 was Rs.83,433/- per

annum which should have been taken for the

purpose of computation of compensation whereas

the Learned Tribunal has taken the income to be

Rs.72,000/- per annum.

(ii) No compensation has been awarded towards loss

of love and affection and loss of estate.

10. The Insurance Company has challenged the award of the

Learned Tribunal on two grounds: -

(i) The dependency of the legal representatives

should have been taken as half as the deceased

was unmarried.

(ii) Future prospects of the deceased should not have

been taken because there was no evidence to

prove the future prospects.

11. The counsel for the claimants refer to and rely upon the

judgments of United India Insurance Co. Ltd. vs.

Sulochana - III (2007) ACC 50 (DB) and New India

Assurance Co. Ltd. vs. Shanti Pathak, 2007 ACJ 2188.

Learned counsel for insurance company refers to the recent

judgment of the Apex Court in the case of Syed Basher

Ahamed vs. Mohd. Jameel, 2009 (1) SCALE 222.

12. With respect to the contention of the claimant that the

income of the deceased should have been taken at

Rs.83,433/- as per the Income Tax return, Ex.PW5/1, it is

noted that Rs.83,433/- is the gross income over expenditure

out of which Rs.11,353/- was deducted towards interest and

dividend and the net income is Rs.72,080/-. The interest and

dividend on the deposits would have continued even after the

death of the deceased and, therefore, the Learned Tribunal

was right in taking the annual income of the deceased at

Rs.72,000/- as per the Income Tax return, Ex.PW5/1. The

contention raised by the claimant in this regard is, therefore,

rejected.

13. With respect to the second contention of the claimants

that the Learned Tribunal has not awarded any compensation

towards loss of love and affection, it is well settled that

compensation computed on the basis of multiplier is towards

pecuniary damages suffered due to the death and the non-

pecuniary damages are awarded for loss of love and affection.

The learned Tribunal has not awarded any amount for loss of

love and affection. Following the recent judgments, where the

Courts have awarded Rs.50,000/- for loss of love and

affection, I award the compensation of Rs.50,000/- towards

loss of love and affection.

14. With respect to the contention of the Insurance

Company that future prospects should not be taken into

consideration, I find that there is sufficient evidence on record

to grant the future prospects. The Income Tax returns for the

last four years were placed on record which show gradual

increase in the income. Secondly, the father of the deceased

came into the witness box and deposed that the income of the

deceased was gradually increasing and would have increased

to Rs.30,000/- per month. Thirdly, the deceased was into the

business of computers and the computer business all over the

world boomed more than other businesses and, therefore, the

presumption taken by the Learned Tribunal that it would

double in the life span of the deceased is fair and reasonable.

15. With respect to the other contention of the Insurance

Company that the personal expenses of the deceased should

have been deducted @ 1/2, I am of the view that in this case

the parents were fully dependent upon the deceased. The

decision of the Learned Tribunal for taking the 1/3rd deduction

towards personal expenses is in consonance with the

judgment of the Apex Court in New India Assurance Co.

Ltd. vs. Shanti Pathak, 2007 ACJ 2188 which is a three

Judges Bench decision.

16. In view of the above, the MAC.APP. No.282/2004 filed by

the Insurance Company is dismissed. MAC.APP. No.257/2004

is partially allowed by awarding Rs.50,000/- towards loss of

love and affection to the appellants. The claimants are also

entitled to the interest @ 7.5% from the date of the petition

till the payment of the enhanced amount. The enhanced

amount along with interest be released to the claimants in

equal shares.

17. The Insurance Company is directed to deposit the

enhanced amount of Rs.50,000/- along with interest @ 7.5%

with the Learned Tribunal within 4 weeks.

18. It is noted that the insurance company deposited

Rs.5,00,000/- in this Court in MAC.APP. No.282/2004. The

Registrar General is directed to transfer this amount to the

Learned Tribunal within four weeks. The Learned Tribunal

shall release the said amount in terms of the award to the

claimants.

J.R. MIDHA, J FEBRUARY 12, 2009 mk