Chotti Devi & Ors. vs National Insurance Co. Ltd. & Ors.
2009 Latest Caselaw 567 Del

R-2A
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            MAC APP.No.964-68/2006

                             Date of decision:17th February, 2009
%

       CHOTTI DEVI & ORS.                   ..... Appellants
                      Through : Ms. Arati Mahajan Shedha
                            with Col. P.K. Subramanian, Advs.

                         versus

       NATIONAL INSURANCE CO. LTD. & ORS. ... Respondents
                     Through : Mr. P.K. Singh, 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 (ORAL)

1. The appellants have challenged the award dated 28 th

July, 2005 passed by the Learned Tribunal whereby the

compensation of Rs.5,04,480/- along with interest @ 9% per

annum has been awarded to the appellants. The appellants

seek enhancement of the award amount.

2. This case relates to the road accident dated 22nd July,

2002. The deceased, Mr. Jugal Kishore was standing in front

of the Bhagel sweets shop, IGNOU road, Nem Sarai, New Delhi

when offending vehicle bearing No.D1 1PB 3623 came from

Saket side and hit the deceased, Mr. Jugal Kishore who died at

the spot.

3. The deceased was aged 32 years at the time of his

death and was survived by his wife, three sons and daughter

who filed the claim petition before the Learned Tribunal. The

deceased was working as 'Halwayee' with Aggarwal Sweets,

Malviya Nagar and was drawing a salary of Rs.3,500/- per

month.

4. The Learned Tribunal took the income of the deceased

at Rs.3091.40 as per the Schedule of Minimum Wages for

skilled worker. The future prospects were taken into

consideration by assuming that the income of the deceased

would have risen to Rs.4,000/- per month and the average of

Rs.3,091.40 and Rs.4,000/- was taken as Rs.3,550/-. 1/3rd was

deducted towards personal expenses of the deceased and the

dependency of the legal representative was computed to be

Rs.2,370/- per month. The Learned Tribunal applied the

multiplier of 17 as per the Second Schedule of Motor Vehicles

Act and computed the loss of dependency to be Rs.4,83,480/-.

Rs.15,000/- was awarded towards loss of estate and

consortium and Rs.6,000/- towards amount spent on

transportation of the dead body to the village for cremation.

The total compensation was computed at Rs.5,04,480/-.

5. The Learned counsel for the claimant has urged the

following grounds for enhancement of the award: -

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

be Rs.3,500/- per month.

(ii) Increase in minimum wages is to be considered

in view the judgment in case of UPSRC vs.

Munni Devi, 2008 VIII AD (Delhi) 9.

(ii) The deceased was having free boarding and

lodging and, therefore his personal expenses

should have been deducted at the rate of

Rs.250/- per month instead of 1/3rd taken by the

Learned Tribunal.

(iii) The compensation for loss of consortium be

enhanced from Rs.15,000/- to Rs.50,000/-.

(iv) The compensation for loss of love and affection

be enhanced to Rs.50,000/-.

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

appellant has examined one witness, namely, PW-2 - Omvir

who was running the sweet shop in Nem Sarai. PW - 2 was

earlier working with Aggarwal Sweets where the deceased

was employed. PW-2 deposed that the deceased was earning

Rs.3,500/- per month from the sweet shop. However, no

documentary proof was filed with respect to the income. The

Learned Tribunal took the minimum wages payable to the

skilled worker at Rs.3,091.40.

7. There is no infirmity in the finding of the Learned

Tribunal in as much as appellants have produced no

documentary proof to prove the salary of the deceased. No

reason has been given as to why the employer was not called

in the witness box to prove the salary of the deceased. In the

absence of the primary evidence, the finding of the Learned

Tribunal with respect to the income of the deceased according

to the minimum wages for skilled worker is correct.

8. In the cases of Kanwar Devi vs. Bansal Roadways,

2008 ACJ 2182, Lekh Raj vs Suram Singh, 2007 ACJ

2165 and National Insurance Company Limited vs. Renu

Devi III (2008) ACC 134, it has been held that the Court

should take judicial notice of increase in minimum wages to

meet the price index and inflation rate. The Court has taken

the view that the minimum wages get doubled over the period

of 10 years and increase in minimum wages is not akin to

future prospects. Following the aforesaid judgments, the

income of the deceased is taken at Rs.4,640/- per month

[(Rs.3,091.40 + Rs.3,091.40 x 2)/2]

9. With respect to the personal expenses of the deceased,

there is no evidence that the deceased had free boarding and

lodging. However, considering that the deceased left behind

five legal representatives, namely, his wife and four minor

children, following the ratio of Surinder Kaur vs. Inder

Kapoor, II (2004) ACC 866, the personal expenses of the

deceased should be deducted to the extent of 1/4 th instead of

1/3rd.

10. The Learned Tribunal has correctly applied the multiplier

of 17.

11. The Learned Tribunal has awarded Rs.15,000/- towards

loss of estate and consortium. In the judgment of Mohinder

Kaur vs. Hira Nand Sindhi, 2007 ACJ 2123, the Apex

Court upheld the interest @ 9% on the loss of consortium of

Rs.50,000/-. In the judgment of the Madras High Court in the

case of United India Insurance Co. Ltd. vs. Sulochana, III

(2007) ACC 50 (DB), the High Court has awarded

Rs.50,000/- towards loss of consortium and Rs.50,000/- for

loss of love and affection. This Court has also awarded

Rs.50,000/- for loss of consortium in the case of New India

Insurance Company Limited vs. Amaresh Kumari, 2005

ACJ 538.

12. The compensation for loss of consortium and loss of love

and affection are the non-pecuniary damages and it is

desirable to maintain uniformity in awarding the non-

pecuniary damages. The compensation for loss of consortium

is enhanced from Rs.15,000/- to Rs.50,000/- and Rs.50,000/- is

awarded for loss of love and affection.

13. The computation of compensation is as under:-

Income of the deceased : Rs.4,640/- (rounded of) (Rs.3,091.40 + Rs.3,091.40 x 2) divided by 2.

Deduction towards : Rs. 1,160- (1/4th of Rs.4,640/-) personal expenses

Loss of Dependency : Rs.7,09,920/-[(Rs.4,640- Rs.1,160) x 12 x 17].

Loss of Consortium : Rs.50,000/-

Loss of love and affection: Rs.50,000/-

Funeral expenses             :   Rs.6,000/-

Total Compensation           :   Rs.8,15,920/-

14. The appeal is allowed by enhancing the award from

Rs.5,04,480/- to Rs.8,15,920/-. The interest @ 9% per annum

on Rs.5,04,480/- from the date of filing of the petition, i.e, 20th

August, 2002 till realization is not disturbed. However, the

interest on the enhanced amount would be payable @ 7.5%

from the date of filing of the petition till date of payment as

per the recent judgment of the Apex Court in the case of

Dharampal vs. U.P. State Road Transport Corporation,

III 2008 ACC 1 SC.

15. Respondent No.1 is directed to deposit the enhanced

amount along with interest accrued thereon with the Learned

Tribunal within 30 days. The enhanced amount along with

interest be released to the appellants in the same proportion

as in the award of the learned Tribunal. 50% of the amount

payable to appellant No.1 is directed to be kept in a FDR for a

period of 5 years and the interest thereon be paid to the

appellant No.1. The share of appellants No.2 to 5 be kept in

fixed deposit for a period of five years or till they attain

majority, whichever is later and the interest thereon be

released to appellant No.1.

J.R. MIDHA, J FEBRUARY 17, 2009 mk