New India Asurance Co.Ltd vs Master Naman Bansal @ Noni & Ors
2009 Latest Caselaw 2958 Del

6&7
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: 31st July, 2009

%

                     +     MAC.APP. 332/2008

      NEW INDIA ASURANCE CO.LTD         ..... Appellant
                    Through : Mr. S.D. Wadhwa, Adv.

                    versus

      MASTER NAMAN BANSAL
      @ NONI & ORS                      .... Respondents
                   Through : Mr. Jatinder Kamra, Adv. for
                             R-1 to 3.

                                  AND

                     +     MAC.APP. 334/2008

      NEW INDIA ASSURANCE CO. LTD       ..... Appellant
                    Through : Mr. S.D. Wadhwa, Adv.

                    versus


      KALAWATI DEVI & ORS           ..... Respondents
                    Through : Mr. Jatinder Kamra, Adv. for
                              R-1 to 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 appellant has challenged the common award of the

learned Tribunal.

2. On 29th March, 2005, the family of Sadhu Ram Bansal

was returning from the pilgrimage to Delhi. They were

travelling in a Maruti Car bearing No.DL-9C-3295. When the

car reached Aronda Hanstra near Khedi Ghatta, District

Bharatpur (Rajasthan), a speeding truck bearing No.MP-06E-

3190 hit their Maruti Car as a result of which Sadhu Ram

Bansal, his wife Asha Bansal and their daughter, Shruti died.

Two children of Sadhu Ram Bansal, namely, son Naman aged

3 years (three) and daughter Samriti aged 13 years at that

time suffered injuries. Shalu Bansal, wife of Sadhu Ram

Bansal's brother Ram Meher and her two children, Agesh and

Ankit were also travelling in the car and they suffered

injuries.

3. Eight claim petitions were filed before the learned

Tribunal out of which three claim petitions related to the

death of Sadhu Ram Bansal, his wife Asha Bansal and

daughter Shruti whereas remaining five claim petitions

related to the injuries suffered by the aforesaid persons.

4. The learned Tribunal passed a common award in

respect of the eight claim petitions. The appellant has

challenged the award of compensation in respect of the

death of Sadhu Ram Bansal and his wife, Asha Bansal. The

appellant has satisfied the award with respect to the

remaining six claim petitions.

5. Sadhu Ram Bansal was aged 42 years at the time of

the accident and was carrying on metal business in the name

and style of S.R. Enterprises. PW-1 deposed that the

deceased was earning about Rs.30,000/- per month but the

returns of Income Tax were not traceable as all the major

persons of the family had expired in the road accident and

the minor children were ignorant of these facts. However,

PW-1 proved the register of employment and remuneration

in Form 'G' - Ex.PW1/1. Ex.PW1/1 contains the names of the

six employees who were working under the deceased out of

which four employees were drawing salary of Rs.3,300/- per

month, one employee was drawing salary of Rs.3,100/- per

month and one employee was drawing salary of Rs.2,900/-

per month. The register-Ex.PW1/1 shows the number of

hours worked by each employee, signatures of the

employees against the salaries drawn for the months of

January, February and March, 2005. PW-1 further deposed

that the deceased was a graduate in Commerce and

Chartered Accountant and had bright future prospects. PW-1

placed on record the certificates showing educational

qualifications which were proved as Ex.PW1/2 (colly.). PW-1

further deposed that Asha Bansal was aged 38 years at the

time of the accident and was an educated self-employed lady

who used to run the computer training centre and food

preservation training from her house and used to earn

Rs.5,000/- per month. The educational qualifications of Asha

Bansal were proved as Ex.PW1/3 (colly.).

6. PW-1 was not cross-examined by the appellant as to

the material particulars. The learned Tribunal took the

income of the deceased as Rs.15,000/- per month from the

business. The deceased was aged 42 years. The learned

Tribunal applied the multiplier of 15 and deducted 1/3rd

towards personal expenses of the deceased to compute the

loss of dependency at Rs.18,00,000/-. Rs.10,000/- has been

awarded towards funeral expenses, Rs.10,000/- towards

transportation of dead body and Rs.10,000/- towards loss of

estate. The total compensation awarded is Rs.18,30,000/-.

7. With respect to the death of Asha Bansal, the learned

Tribunal took the income of the deceased to be Rs.5,000/-

per month from the computer training centre run by her

considering that Asha Bansal held a degree in Bachelor of

Arts, Civil Defence Examination certificate as well as Web

Designing certificate proved on record. Considering the age

of the deceased to be 38 years, the multiplier of 16 was

applied and after deducting 1/3rd towards personal expenses,

the loss of dependency was computed as Rs.6,40,000/-.

Rs.10,000/- has been awarded towards funeral expenses,

Rs.10,000/- towards transportation of dead body and

Rs.10,000/- towards loss of estate. The total compensation

awarded to the claimants in respect of the death of Asha

Bansal is Rs.6,70,000/-.

8. The only ground of challenge by the appellant in these

appeals is that the income of the deceased taken by the

learned Tribunal is on a higher side. According to the

learned counsel for the appellant, the income of the

deceased should not be taken to be more than Rs.8,000/- per

month and even adding 50% towards future prospects, the

income of the deceased should not be more than Rs.12,000/-

per month for the purposes of computation of compensation.

With respect to the Asha Banal, the learned counsel for the

appellant submits that her income should not be taken to be

more than Rs.4,000/- per month inclusive of future

prospects.

9. The sole question which has arisen for consideration in

these appeals is the raising of presumption as to the income

to the deceased. PW-1 has proved that the deceased was

running metal business in the name of S.R. Enterprises and

had employed six employees out of which four were being

paid Rs.3,300/- per month, one employee was being paid

Rs.3,100/- per month and one employee was being paid

Rs.2,900/- per month. The total amount of salary being paid

by the deceased was Rs.19,200/- per month. The deceased

was an educated person having cleared the Intermediate

Examination of Chartered Accountancy. The documents

pertaining to his qualifications were proved as Ex.PW1/2

(colly.). Similarly, Asha Bansal was also a well educated

lady. She had a degree in Bachelor of Arts from Punjab

University, Civil Defence Organization certificate from

Chandigarh Administration, certificate from St. John

Ambulance Association, certificate from Food and Nutrition

Board, Ministry of Food and Civil Supplies, certificates on

computer education from Naptune.

10. Considering the evidence on record, the income of the

deceased Sadhu Ram Bansal and Asha Bansal taken by the

learned Tribunal is fair and reasonable following the

test/guidelines under Section 114 of the Indian Evidence Act.

Notwithstanding, the fairness and reasonableness of the

income of the deceased, the appellant cannot raise the

objection at this stage. The appellant had to lay the

foundation of challenge before the learned Tribunal by cross-

examining PW-1 when he was in the witness box and by

leading the evidence to rebut the evidence led by the

claimants/respondents. Admittedly, the appellant did not

cross-examine PW-1 before the learned Tribunal and also did

not lead any evidence to rebut the evidence led by the

claimants before the learned Tribunal. It is also noted that

the learned Tribunal has not awarded any compensation to

the claimants towards loss of love and affection. The loss of

love and affection is gravest in the present case. The

claimants are two minor children who were aged 3 years and

13 years at the time of the accident and they lost both

parents and a sister in the accident. The claimants were also

injured in the accident. The claimants are now living with

their grandmother who is aged about 80 years. Both the

children are present in the Court along with their

grandmother. The grandmother apart from being old is also

illiterate. The children are now 7 years and 17 years old.

One of the children is studying in Government school and the

other in a private school. The destiny has snatched away

both the parents and a sister from the two small children.

The family was returning to Delhi after pilgrimage. No one

has control over the destiny. The learned Tribunal ought to

have awarded sufficient compensation towards loss of love

and affection. However, since there are no cross-objections

by the claimants, no compensation is being awarded on

account of loss of love and affection.

11. Both these appeals are dismissed. No orders as to

costs.

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

for the parties under the signature of Court Master.

J.R. MIDHA, J JULY 31, 2009 aj