Pushp Lata Sharma vs National Insurance Co.Ltd.& Ors.
2009 Latest Caselaw 2870 Del

13
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +      FAO.No.436/2002

                                 Date of Decision: 28th July, 2009
%

      PUSHP LATA SHARMA             ..... Appellant
                    Through : Mr. Navneet Goyal, Adv.

                  versus


      NATIONAL INSURANCE CO.LTD.& ORS. ..... Respondents
                    Through : Ms. Neerja Sachdeva, 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 appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,32,000/- has been

awarded to the appellant.

2. The accident dated 9th November, 1991 resulted in the

death of Manoj Sharma. The deceased was survived by his

mother who filed the claim petition before the learned

Tribunal.

3. The deceased was aged 24 years at the time of the

accident. The deceased was unmarried. The father of the

deceased had pre-deceased him. The deceased was working

as a captain with Hotel Dawat, Delhi and was earning

Rs.3,100/- per month. However, the learned Tribunal took

the minimum wages into consideration and after taking into

consideration the future prospects and deducting 1/3rd

towards personal expenses, the dependency of the appellant

was taken to be Rs.1,000/- per month. The learned Tribunal

applied the multiplier of 11 to compute the loss of

dependency at Rs.1,32,000/-. No compensation was

awarded towards loss of love and affection, loss of estate

and funeral expenses.

4. The appellant has challenged the impugned award on

the following grounds:-

(i) The income of the deceased be taken to be Rs.3,100/-

per month for computation of compensation.

(ii) The multiplier be enhanced from 11 to 14.

(iii) The compensation be awarded for loss of love and

affection, loss of estate and funeral expenses.

5. The appellant appeared before the learned Tribunal in

witness box as PW2 and deposed that the deceased was 24

years old at the time of the accident. She further deposed

that the deceased had done training in Hotel Marina and was

working in Hotel Dawat, Delhi earning Rs.3,100/- per month

as salary besides tips which used to be to the tune of

Rs.2,000/- to Rs.2,500/- per month. PW2 further deposed

that the deceased joined the service in the year 1991 and

had served for about 6 - 7 months. PW2 also proved the

certificate of the deceased regarding his educational

qualifications - Ex.PW2/B to Ex.PW2/E. In the cross-

examination, PW2 was asked as to how much amount he was

paying to the appellant to which PW2 deposed that the

deceased was paying her Rs.3,100/- per month. PW2 further

deposed in cross-examination that the deceased was

maintaining a scooter which he had purchased himself and

he used to bear the expenses of the scooter himself and was

spending about Rs.500/- to Rs.1,000/- on himself.

6. The witness from Hotel Marina appeared as PW4 and

proved the certificates - Ex.PW4/1 and Ex.PW4/2 issued by

Hotel Marina. PW4 further deposed that the deceased joined

Hotel Marina on 16th February, 1999. Ex.PW2/B is the

certificate issued by Central Board of Secondary Education

regarding the secondary school examination cleared by the

deceased in the year 1985. Ex.PW2/C is the senior

secondary school certificate issued by Central Board of

Secondary Education to the deceased in 1987. Ex.PW2/D is

the mark-sheet issued by Central Board of Secondary

Education to the deceased in the year 1985. Ex.PW2/F is the

certificate issued by Friends Sports Club, Delhi certifying that

the deceased participated in All India Indira Gandhi Cross

Country Race. Ex.PW2/G and Ex.PW2/H are the certificates

issued by the school regarding the awards won by the

deceased in the games at school level. Ex.PW2/I is the

certificate issued by NCC to the deceased. Ex.PW2/J is the

certificate issued to the deceased for completing marathon

race in December, 1986. Ex.PW2/K is again the certificate

issued by NCC to the deceased. Ex.PW2/L is the certificate

issued to the deceased for participating in Delhi Marathon,

1988. Ex.PW4/1 is the certificate issued by Hotel Marina

calling the deceased for interview on 5th June, 1991 for the

pose of waiter. Ex.PW4/2 is the certificate issued by Hotel

Marina certifying that he completed the apprenticeship

training of one and a half year on 3rd February, 1991.

7. Mark-PX and Mark-PY are the certificates issued by

Dawat Restaurant certifying that the deceased was working

as a captain with Dawat Restaurant and was drawing a basic

salary of Rs.1,500/- per month in addition to tips to the tune

of Rs.1,600/- per month and the gross salary of the deceased

was Rs.3,100/- per month.

8. The learned Tribunal has not considered the aforesaid

documents and has taken the minimum wages into

consideration for computing the income of the deceased.

The aforesaid documents clearly show that the deceased was

a well educated person and had completed his training with

Hotel Marina and was working with Dawat Restaurant and

was earning Rs.3,100/- per month. There being sufficient

evidence on record, the learned Tribunal clearly erred in

comparing the deceased with an unemployed labourer sitting

on the road in search of work. The findings of the learned

Tribunal in this regard are, therefore, erroneous. The learned

Tribunal also erred in conducting an enquiry as contemplated

under Sections 168 and 169 of the Motor Vehicles Act, 1988.

Be that as it may, the income of the deceased is taken to be

Rs.3,100/- per month as the salary being drawn from Hotel

Marina where the deceased was employed as the captain.

The deceased was aged 24 years at the time of the accident

and, therefore, 50% is added towards the future prospects

and the income of the deceased for computation of

compensation is taken to be Rs.4,650/- (Rs.3,100/- +

Rs.1,550). 50% is deducted as personal expenses of the

deceased on himself and the loss of dependency of the

appellant is taken to be Rs.2,325/-(Rs.4,650/2). The age of

the appellant at the time of the accident was 43 years and,

therefore, the appropriate multiplier according to the age of

the appellant is 14. Applying the multiplier of 14, the loss of

dependency of the appellant is computed to be Rs.3,90,600/-

(Rs.2,325 X 12 X 14). The learned Tribunal erred in not

awarding any compensation for loss of love and affection,

loss of estates and funeral expenses. Rs.10,000/- is awarded

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

of estate and Rs.2,500/- towards funeral expenses. The total

compensation is computed to be Rs.4,13,100/- (Rs.3,90,000+

Rs.10,000 + Rs.10,000 + Rs.2,500).

9. The appeal is allowed and the award amount is

enhanced from Rs.1,32,000/- to Rs.4,13,100/-. The learned

Tribunal has awarded interest @9% per annum which is not

disturbed on the original award amount of Rs.1,32,000/-.

However, on the enhanced amount, respondent No.1 shall be

liable to pay interest @7.5% from the date of filing of the

petition till realization.

10. The order with respect to the disbursement of the

award amount shall be passed on 4 th September, 2009. The

appellant is directed to remain present in the Court on the

next date of hearing.

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

for the parties under the signature of Court Master.

J.R. MIDHA, J

JULY 28, 2009 aj