New India Assurance Co. Ltd. vs Pratibha Shrivastava & Ors.
2009 Latest Caselaw 939 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +     MAC.APP.547/2008

%                                    Date of decision: 23rd March, 2009

NEW INDIA ASSURANCE CO. LTD.                ...Appellant
                  Through : Mr. Atul Nanda and Mr. Sanjay
                             Bhardwaj, Advocates.

                            versus

PRATIBHA SHRIVASTAVA & ORS.                            ...Respondents
                  Through : None.

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. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.28,70,000/- has been

awarded to the claimants/respondents No.1 to 3.

2. The accident dated 2nd November, 2004 resulted in the

death of Satish Kumar who was walking on foot near Tikona Park,

DTC Pass Office, Main Road, Rani Market, Delhi when the

offending bus bearing No.DL-1PA-7836 hit the deceased resulting

in fatal injuries.

3. The deceased was permanently disabled being 100% blind.

The deceased was working as a TGT Teacher with Government

Boys Senior Secondary School No.2, Model Town, Delhi drawing a

salary of Rs.12,250/- per month at the time of the accident.

4. The deceased was survived by his widow aged about 35

years and two minor children aged 8 and 5 years respectively

who filed the claim petition before the learned Tribunal.

5. At the trial, the widow of the deceased appeared as PW-1

and proved the ration card-Ex.PW1/1, FIR-Ex.PW1/2, driving

licence-Ex.PW1/3, driver badge-Ex.PW1/4, registration cover-

Ex.PW1/5, insurance certificate-Ex.PW1/6, post-mortem report-

Ex.PW1/7, death certificate-Ex.PW1/8 and date of birth certificate-

Ex.PW1/9. PW-1 deposed that the last drawn salary of the

deceased at the time of the accident was Rs.12,250/- in the scale

of Rs.5,500-175-9,000 as per Ex.PW1/10. She further deposed

that the deceased had opted for government accommodation in

lieu of 30% HRA amounting to Rs.3,026/-. The service

confirmation letter of the pay scale dated 19 th November, 2003

was exhibited as Ex.PW1/11.

5.1. PW-1 further deposed that her husband was eligible for

getting upgradation of his salary under the ACP Scheme (Assured

Career Progression Scheme) for Central Government civilian

employees after 12 years of service in the grade of Rs.6,500-200-

10,500 on first upgradation and in the scale of Rs.7,500-250-

12,000 on second upgradation. The witness proved the office

order dated 18th January, 2005 issued by the Directorate of

Education, Government of NCT of Delhi as Ex.PW1/12. The

deceased was entitled to the first upgradation on 17 th December,

2008.

5.2. PW-1 further deposed that the deceased was 100% blind

and was therefore, entitled to avail free travel facility in city

buses and had 100% tax benefits under Section 88(4) of the

Income Tax Act. The disability certificate was proved as

Ex.PW1/13. The identity card issued by the Directorate of Social

Welfare, Delhi Administration showing the complete blindness of

the deceased was exhibited as Ex.PW1/14.

5.3. PW-1 further deposed that the claimants were staying in the

government accommodation allotted to the deceased in lieu of

the 30% HRA and after his death they have to vacate the

government accommodation to shift to the rented

accommodation which would not be available for less than

Rs.5,000/- to Rs.6,000/- per month and therefore, the HRA should

also be added in the salary of the deceased for the purposes of

computation. PW-1 further stated to have spent Rs.50,000/- on

the treatment of the deceased from the date of the accident i.e.,

3rd November, 2004 up to the date of the death on 9 th November,

2004.

5.4. PW-1 was not cross-examined by the appellant on material

particulars except a suggestion that the documents pertaining to

age and income were not genuine and the amount of expenditure

on the treatment of the husband was not correct and that she

had wrongly deposed about the future prospects of the husband.

6. PW-2 produced the judicial file pertaining to FIR

No.507/2004 and proved the FIR-Ex.PW1/2, registration cover-

Ex.PW1/5, charge sheet-Ex.PW1/15, Ruqqa-Ex.PW1/16, notice

under Section 133 of the Motor Vehicles Act-Ex.PW1/17A, reply-

Ex.PW1/17B, seizure memo and original post mortem report-

Ex.PW1/17, death certificate-Ex.PW1/8 and MLC-Ex.PW1/18.

7. The Vice Principal of the Government Boys Senior

Secondary School, Model Town, Delhi appeared as PW-3 and

produced the notification dated 25th August, 2003 and office

order of Directorate of Education dated 16th September, 2004 and

tentative pay fixation order prepared by the accounts section

pertaining to the deceased as Ex.PW3/1, Ex.PW3/2 and Ex.PW3/3.

The witness deposed that the basic pay of the deceased would

have been Rs.12,250/- on 31st March, 2008. The witness also

proved Ex.PW1/10 and Ex.PW1/11.

8. The Investigating Officer of Delhi Police appeared as PW-4

and proved the FIR-Ex.PW4/A, Ruqqa-Ex.PW1/16, notice under

Section 133 of the Motor Vehicles Act-Ex.PW1/17A and reply-

Ex.PW1/17B. PW-4 was recalled for further examination on 13 th

July, 2007 when he proved the site plan- Ex.Y1.

9. The learned Tribunal held that the total salary of the

deceased at the time of the accident was Rs.12,250/- as per the

Ex.PW1/10. The learned Tribunal deducted CCA of Rs.300/-, TA of

Rs.200/- and medical allowances of Rs.75/- and computed the

salary of the deceased to be Rs.11,675/- (Rs.12,250 - Rs.575/-).

The learned Tribunal added 30% of HRA to compute the net

salary at Rs.14,700/- (Rs.11,675 + Rs.3,026) per month. The

learned Tribunal considered the future prospects of the deceased

according to the Ex.PW3/1, Ex.PW3/2 and Ex.PW3/3 by which the

basic salary of the deceased would have certainly increased to

Rs.12,250/-. The basic salary of the deceased at the time of the

accident was Rs.6,725/- which would have increased to

Rs.12,250/- as per Ex.PW3/3 which is approximately double and,

therefore, the learned Tribunal computed the salary of the

deceased by taking the average of Rs.14,700/- and its double i.e.,

Rs.29,400/- which comes to Rs.22,050/- [(14,700 + 14,700 x

2)/2]. 1/3rd was deducted towards the personal expenses of the

deceased and the multiplier of 16 was applied to compute the

total loss of income at Rs.28,22,400/- (1,22,050 divided by 2/3 x

12 x 16). Rs.7,500/- was awarded towards medical expenses,

Rs.30,000/- towards love, affection and consortium and

Rs.10,000/- towards funeral expenses. The total compensation

was computed at Rs.28,69,900/- (rounded of as Rs.28,70,000/-).

10. The only ground of challenge in this appeal is that the

future prospects of the deceased should not have been taken into

consideration. I do not find any merit whatsoever in this

contention. It has been proved by sufficient evidence that the

salary of the deceased would have doubled during the remaining

service of the deceased. The Vice Principal of the school of

employment of the deceased appeared as PW-3 and proved the

promotion policy of the government- Ex.PW3/1 and Ex.PW3/2.

PW-3 also produced the exact computation of pay fixation and

the future increase in pay of the decease as Ex.PW3/3. No

evidence was led by the appellant and, therefore, the evidence

led by the claimants remains un-rebutted. The learned Tribunal

has computed the compensation according to well settled

principles of law. There is not even an iota of error in the award

of the learned Tribunal. It appears that the Insurance Company

did not apply their mind before taking the decision to file the

appeal.

11. There is no merit in this appeal. The appeal is, therefore,

dismissed with cost.

                                                     J.R. MIDHA, J
  rd
23     March, 2009
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