Devindera Kumari & Ors. vs Dtc & Ors.
2009 Latest Caselaw 3500 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +      FAO.No.205/1999

                           Date of Decision: 2nd September, 2009
%

      DEVINDERA KUMARI & ORS.          ..... Appellants
                   Through : Mr. Navneet Goyal, Adv.

                  versus

      DTC & ORS.                              ..... Respondents
                        Through : Ms. Bhakti Pasrija, 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 of the

learned Tribunal whereby compensation of Rs.96,000/- has

been awarded to the appellants. The appellants seek

enhancement of the award amount.

2. The accident dated 8th October, 1985 resulted in the

death of Ashok Kumar Sharma. The deceased was survived

by his widow, one minor son, three minor daughters and

mother.

3. The deceased was aged 38 years at the time of the

accident. The deceased was carrying on the business of

Railway Clearing and Forwarding Agent. The deceased was

also partner in a construction firm. The income of the

deceased was Rs.2,000/- per month at the time of the

accident.

4. The learned Tribunal took the income of the deceased

as Rs.1,000/- per month and deducted 1/3rd towards personal

expenses and applied the multiplier of 12 to compute the

loss of dependency as Rs.96,000/-. No compensation has

been awarded to the appellants towards loss of consortium,

loss of love and affection, loss of estate and funeral

expenses.

5. The learned counsel for the appellant has urged the

following grounds at the time of hearing of this appeal:-

(i) The income of the deceased be taken to be Rs.2,000/-

per month.

(ii) 50% of the income be added towards the future

prospects of the deceased.

(iii) The personal expenses of the deceased be reduced

from 1/3rd to 1/4th considering that the deceased left behind

six dependents.

(iv) The multiplier be enhanced from 12 to 15.

(v) The compensation be awarded for loss of consortium,

loss of love and affection, loss of estate and funeral

expenses.

(vi) The interest be enhanced from 6% per annum to 9%

per annum.

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

No.1, the widow of the deceased appeared in the witness box

as PW-12 and deposed that the deceased was carrying on

the business of Railway Clearing Agent at Chandni Chowk ,

Delhi and he used to give Rs.2,000/- per month to her. PW-

12 produced the Income Tax Assessment Order and Challan

pertaining to years 1978-79 to 1985-86 which were exhibited

as Ex.PW12/1 to Ex.PW12/10. PW-12 also produced the

certificates from Rajasthan Cloth House which were exhibited

as Ex.PW12/A to Ex.PW12/F. The certificates of deduction of

Income Tax were exhibited as Ex.PW12/G and Ex.PW12/H.

7. Ex.PW12/1 is the assessment order dated 24 th May,

1979 for the year 1978-79 and the income of the deceased

has been assessed as Rs.10,300/- on which the deceased has

paid tax of Rs.241/-. Ex.PW12/2 is the counter foil of the

Self-Assessment Tax Return for the year 1979-80 whereby

the deceased has paid the Income Tax of Rs.322/-.

Ex.PW12/3 is the assessment order of the deceased for the

year 1981-82 whereby the income of the deceased has been

assessed to be Rs.12,300/- and the payment of Income Tax

of Rs.99/- has been recorded. Ex.PW12/4 is the notice of

demand of Rs.99/- towards the Income Tax for the year

1981-82. Ex.PW12/5 is the counter foil of the Self-

Assessment Tax Return dated 17th January, 1986 for the year

1985-86 whereby the Income Tax of Rs.2,335/- has been

deposited. Ex.PW12/6 is the counter foil of the Income Tax

Return dated 14th March, 1990 for the year 1985-86 whereby

Income Tax of Rs.664/- has been paid by the deceased.

Ex.PW12/7 is the notice of demand of Rs.592/- by the Income

Tax Department towards the Income Tax for the year 1985-

86. Ex.PW12/8 is the notice dated 23rd June, 1986 by the

Income Tax Department to the deceased demanding a sum

of Rs.2,799/- towards the Income Tax for the year 1985-86.

Ex.PW12/9 is the acknowledgment of the Income Tax Return

of the deceased for the year 1985-86. Ex.PW12/10 is the

assessment order of the deceased for the year 1985-86

whereby the total income of the deceased has been assessed

at Rs.24,300/-. Ex.PW12/A to Ex.PW12/D are the statements

of account of the deceased issued by Rajasthan Cloth House

certifying the amount of deposit of the deceased with them

and the interest paid by them to the deceased. Ex.PW12/G is

Form 19A certifying the deduction of Rs.525/- towards the

Income Tax from the interest amount paid to the deceased

by Rajasthan Cloth House. Ex.PW12/H is Form 19A in respect

of the deduction of Income Tax from the interest paid by M/s

Srimander Dass Moti Lal to the deceased.

8. The witness from Bank of Rajasthan, Fatehpur, Delhi

appeared before the learned Tribunal as PW-6 and produced

the record of Saving Bank Account No.2764 operated by the

deceased from 1982-85. The certified copy of the bank

account was exhibited as Ex.PW6/1.

9. The witness from Rajdhani Chitfund Pvt. Ltd. appeared

before the learned Tribunal as PW-7 and produced the

passbook in respect of the chit given to the deceased in

1978. PW-7 deposed that the deceased used to contribute

Rs.1,000/- per month till 1982.

10. The partner M/s Ramjeshwar Dass Sri Kishan appeared

before the learned Tribunal as PW-8 and produced the copy

of the confirmation letter given to the deceased which was

exhibited as Ex.PW8/1. PW-8 deposed that he had taken a

deposit for Rs.10,000/- by cheque from the deceased on 8th

January, 1983 and the said amount was returned on 5 th April,

1983 along with interest by means of a cheque.

11. The accountant of M/s Basant Lal Saraff appeared

before the learned Tribunal as PW-9 and deposed that the

deceased had deposited a sum of Rs.10,000/- with the firm in

1983 by means of a cheque on interest @18% per annum

and this amount was returned on 5th April, 1983 along with

interest. PW-9 produced the ledger account which contained

the entry of the deposit of the deceased. The witness proved

the copy of the ledger account - Ex.PW9/1 which contained

the entry of the deposit. The witness produced the copies of

the ledger account - Ex.PW9/1 and Ex.PW9/2 which

contained the relevant entries.

12. The brother of the deceased appeared in the witness

box as PW-9A and deposed that the deceased was Railway

Clearing and Forwarding Agent. PW-9 deposed that the

deceased was also partner in M/s Rohit Construction and his

income was Rs.2,000/- per month.

13. The accountant of M/s Srimander Dass Moti Lal

appeared in the witness box as PW-10 and deposed that the

deceased had deposited Rs.25,000/- with the firm by a

cheque dated 18th September, 1982 and the said amount

was returned on 21st May, 1982 by means of a cheque along

with interest. The witness produced the copy of the ledger

account of the firm which was proved as Ex.PW10/1.

14. The witness from the firm M/s Ram Sewak Hari Ram

appeared before the learned Tribunal as PW-11 and

produced the ledger account of the firm. The deceased had

deposited Rs.10,000/- with the firm on 18th January, 1982 by

means of a cheque which was returned along with interest on

23rd April, 1982. The copies of the relevant ledger account

were proved as Ex.PW11/1 to Ex.PW11/3.

15. There is sufficient evidence on record that the

deceased had good income from the business carried on by

him. The deceased had been regularly investing the money

at various places and was earning interest thereon. The

interest on those deposits would certainly accrue to the

appellants and, therefore, the income by way of interest is

not being taken into consideration but the deposits being

made by the deceased clearly show that the deceased had

sufficient income and after meeting his personal expenses

and expenditure on the family, he was able to save sufficient

money for deposit. As per the Income Tax Return for the

year 1985-86, the Income Tax of Rs.2,335/- has been

deposited which has been disregarded by the learned

Tribunal on the ground that this return was filed after the

date of death of the deceased. The reason given by the

learned Tribunal to disregard this evidence is not correct. If

the income accrued with respect to the income of the

deceased during the current year before the date of filing of

the return, the Income Tax Return has to be filed after his

death and this cannot be a ground for disregarding the

income. The learned counsel for the respondent submits

that though the deceased paid Income Tax during the period

1978-82, no Income Tax was paid during the period 1982-85

and, therefore, the income of the deceased should be taken

according to the Income Tax Return for the year 1981-82.

Considering the abundant evidence on record duly supported

by the testimonies of the witnesses, the income of the

deceased is taken to be Rs.2,000/- per month. The learned

counsel for the appellant submits that the future prospects

should also be taken into consideration. However, according

to the recent judgment of the Hon'ble Supreme Court in the

case of Sarla Verma Vs. Delhi Transport Corporation,

2009 (6) Scale 129, the future prospects on the business

income is not permissible and, therefore, the claim of future

prospects is rejected.

16. The deceased was aged 38 years at the time of the

accident and has left behind six dependants. According to

the judgment of the Hon'ble Supreme Court in the case of

Sarla Verma Vs. Delhi Transport Corporation (supra),

the appropriate multiplier at the age of 38 years is 15 and

the appropriate deduction towards personal expenses is 1/4 th

considering the deceased has left behind six dependants.

Following the aforesaid judgment, the multiplier is enhanced

from 12 to 15 and the personal expenses of the deceased

are reduced from 1/3rd to 1/4th.

17. Taking the income of the deceased to be Rs.2,000/- per

month, deducting 1/4th towards personal expenses and

applying the multiplier of 15, the loss of income of the

appellants is computed to be Rs.2,70,000/- (Rs.2,000 x 3/4 x

12 x 15).

18. The learned Tribunal has not awarded any

compensation towards loss of consortium, loss of love and

affection, loss of estate and funeral expenses. Rs.10,000/- is

awarded towards loss of consortium, Rs.10,000/- towards

love and affection, Rs.5,000/- towards loss of estate and

Rs.5,000/- towards funeral expenses. The total

compensation is computed to be Rs.3,00,000/- (Rs.2,70,000

+ Rs.10,000 + Rs.10,000 + Rs.5,000 + Rs.5,000).

19. The learned Tribunal has awarded interest @6% per

annum which is not disturbed on the original award amount

of Rs.96,000/-. However, on the enhanced award amount, the

rate of interest shall be @7.5% per annum from the date of

filing of the petition till realization.

20. The appeal is allowed and the award amount is

enhanced from Rs.96,000/- to Rs.3,00,000/- along with

interest @7.5% per annum from the date of filing of the

petition till realization.

21. The enhanced award amount along with interest be

deposited by the respondent with UCO Bank A/c Devendra

Kumari, Delhi High Court Branch within 30 days.

22. The order with respect to disbursement of the award

amount shall be passed on the next date of hearing after

examining the appellants who are directed to remain present

in the Court on the next date of hearing.

23. List for directions on 27th October, 2009.

J.R. MIDHA, J

SEPTEMBER 02, 2009 aj