Icici Lombard General Insurance ... vs Smt. Birbati & Others
2010 Latest Caselaw 5539 Del

                                    REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+            MAC.APP. NO. 305/2009

ICICI LOMBARD GENERAL INSURANCE CO. LTD.     ..... Appellant
                   Through: Ms. Suman Bagga, Advocate.
          versus

SMT. BIRBATI AND ORS.                                ..... Respondents
                    Through:           Mr. Kundan Kumar Lal,
                                       Advocate.

%                         Date of Decision : December 06, 2010

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

                          JUDGMENT

: REVA KHETRAPAL, J.

By way of this appeal the appellant seeks to assail the judgment

and award dated 8th April, 2009 passed by the learned Motor Accident

Claims Tribunal on a petition filed under Section 166 and 140 of the

Motor Vehicles Act, 1988 for grant of compensation by the

respondents no.1 and 2 herein, who lost their son Pankaj Yadav in a

road accident, for which FIR No. 504/2006 under Sections 279/304A

IPC was registered at Police Station Najafgarh.

2. The relevant facts are that on 29th May, 2006 the deceased was

going from Tura Mandi to Metro Station Najafgarh as pillion rider on

the scooter bearing no. HR 26 K 9556, which was being driven by his

brother. When they reached Najafgarh-Tilak Nagar Main Road, near

Metro Station Opposite Sai Baba Mandir, Najafgarh, their scooter met

with an accident with one Maruti Wagon R Car bearing registration

no. HR 51 S 1562 which was driven by the respondent no.3. As a

result of the accident the deceased Sh. Pankaj Yadav fell down on the

road and received fatal injuries, resulting in the filing of the claim

petition by the respondents no.1 and 2 against the driver (respondent

no.3 herein), the owner (respondent no.4 herein) and the insurer of the

offending car. The respondents no.3 and 4 having failed to contest

the case on merits, the appellant was granted the requisite permission

to do so under Section 170 of the Motor Vehicles Act by order of

theTribunal dated 10th April, 2008.

3. The learned Tribunal by its judgment dated 8th April, 2009,

which is impugned in the present appeal, passed an award in the sum

of ` 8,17,000/- along with interest @ 7.5% p.a. from the date of the

institution of the petition till its realization, in favour of the

respondents no.1 and 2, herein and directed the appellant as the

insurer of the Maruti Wagon-R car to pay the entire amount of

compensation. Aggrieved therefrom, the appellant has filed the

present appeal praying for modification of the award dated 8th April,

2009.

4. At the time of hearing, Ms. Suman Bagga, the learned counsel

for the appellant challenged the award principally on two grounds.

The learned counsel contended that the learned Claims Tribunal had

grossly erred in accepting the salary of the deceased @ ` 8000/- per

month on the basis of the salary slip of the deceased, which was

produced by the father of the deceased in his evidence. The said

document, not having been proved in accordance with law, there is no

sufficient proof on the record that the deceased was working with

M/s. A.S. Electric Works as Supervisor or was drawing a monthly

salary of ` 8000/- per month from the said firm. No witness had been

summoned from the said firm, alleged to be the employer of the

deceased, to prove that the deceased was working with them and was

drawing a salary of ` 8000/- per month.

5. The learned counsel for the appellant further contended that in

the absence of authentic proof of the salary of the deceased, the

Tribunal ought to have considered the income of the deceased on the

basis of the minimum wages for the purpose of computing the

compensation payable to the respondents no.1 and 2. The second

contention of Ms. Bagga was that the learned Claims Tribunal had

failed to appreciate that the judgment of the Hon'ble Supreme Court

rendered in Smt. Sarla Dixit & Anr. vs. Balwant Yadav & Ors. AIR

1996 SC 1274 was not applicable to the facts of the present case, as

no evidence was led to prove the future prospects of the deceased, and

even the salary certificate of the deceased had not been proved in

accordance with law. As such, the addition of future prospects to the

income of the deceased was not sustainable.

6. Mr. Kundan Kumar Lal, the learned counsel for the

respondents no.1 and 2, on the other hand, sought to support the

award of the Tribunal by contending that the salary certificate

Ex.PW1/1 had been proved by the father of the deceased in the course

of his evidence and no cogent evidence was adduced to disprove the

same. As regards the future prospects of the deceased, the learned

counsel contended that the deceased was 20 years of age at the time

of the accident and was earning a sum of ` 8000/- per month. Had

he not met with the accident, the deceased would certainly have made

progress and risen in life.

7. After hearing the parties and scrutinizing the documents on

record, this Court is of the view that the salary certificate, Ex.PW1/1

does not inspire confidence. The executant of the salary certificate

was not called into the witness box to prove the same and it is

unlikely to say the least that the deceased, who was aged 20 years and

was only a matriculate could have drawn a sum of ` 8000/- as

'Supervisor' in a firm dealing with electricity jobs, when admittedly

he had no formal education in the subject, nor was he technically

qualified in any manner. The whole tenor of the document Ex.PW1/1

suggests that it was issued for sympathetic considerations, the

contents whereof for the sake of ready reference are reproduced

hereunder:

" 01-07-06 To Whom It May Concern

This is to certify that Late Sh. Pankaj Yadav s/o Shri Chiranji Lal Yadav who was employed as supervisor in the company from last five months and was drawing total monthly salary of Rs.8000/-.

During his service tenure he was very hard working, dedicated toward work and honest. Due to his death in road accident the company has suffered great loss. My sympathy is with his family members.

Sd/-"

8. Further, the salary certificate of the deceased, itself shows that

the deceased had been working with M/s. A.S. Electric Works for a

period of five months only. There is no evidence on record to suggest

that he had worked elsewhere before working with M/s. A.S. Electric

Works. It is, therefore, hard to believe that he was drawing a salary

of ` 8000/- per month and working on the post of 'Supervisor'

within five months of his joining the firm.

9. Accordingly, this Court is of the view that as the deceased was

a Matriculate the learned trial court ought to have taken the minimum

wages on the date of the accident as applicable to a Matriculate for

the purpose of assessing the income of the deceased. As per the

Schedule of the Minimum Wage Rate, on the date of the accident the

minimum wage applicable to a matriculate was ` 3760/- per month.

As regards future prospects, the deceased was in the age group of 20-

30 years. This Court has, in a number of cases, taken judicial notice

of the fact that the minimum wages are doubled in the course of 10

years and if adjudged on this basis, the deceased would have drawn

double of ` 3760/- at the age of 30 years, which again would have

doubled after every ten years. In the case of Sarla Verma and Ors.

vs. DTC and Anr. (2009)5 SCC 121, however, the Hon'ble Supreme

Court has laid down certain guidelines to enable the Courts to assess

the future prospects of the deceased on a uniform basis, and applying

the yardstick laid down in the said case, an addition of 50% of the

actual salary to the actual salary income of the deceased towards the

future prospects of the deceased must be made where the deceased is

below 40 years of age. Thus calculated, the income of the deceased

works out to ` 3760/- + ` 1880/- = ` 5640/- per month, and the

annual income of the deceased thus comes to ` 67,680/- per annum.

Deducting one-half (1/2) therefrom towards the personal expenses of

the deceased, keeping in view the fact that the deceased was a

bachelor, the annual loss of dependency of the respondents no.1 and 2

works out to ` 33,840/-.

10. As regards the multiplier to be adopted, it is well settled that

where the deceased is a bachelor, the multiplier is to be determined on

the basis of the age of the claimants and not on the basis of the age of

the deceased. Ordinarily, the choice of multiplier is determined

taking into consideration the age of the mother of the deceased.

However, keeping in view the fact that the age of the mother of the

deceased was not available on record, the Tribunal in the instant case

took into consideration the age of the father of the deceased. For the

aforesaid purpose, the Tribunal noted that the affidavit sworn by the

father of the deceased had been proved on record as Ex.PW1/A,

wherein his age was given as 56 years on 10th April, 2008. The

Tribunal, therefore, rightly concluded that on the date of the accident

his age was about 54 years and accordingly applied the multiplier of

11 to the annual loss of dependency. I see no cogent reason to

disagree with the Tribunal in this regard. Accordingly, applying the

multiplier of 11 to the multiplicand of ` 33,840/-, the total loss of

dependency of the respondents no.1 and 2 is worked out at

` 3,72,240/-.

11. The Tribunal has awarded non-pecuniary damages in the sum

of ` 25,000/- on account of loss of love and affection, funeral

expenses and loss of estate of the deceased. Adding the aforesaid

amount to the pecuniary damages, the respondents no.1 and 2 will be

entitled for a total compensation of ` 3,72,240/- + ` 25,000/- =

` 3,97,240/-, which may be rounded off to ` 4,00,000/-. Out of

awarded amount, the interim award, if any, shall be deducted.

Interest @ 7.5% p.a. from the date of the filing of the petition till the

date of realization is also held to be payable.

12. The award is accordingly modified to the above extent. Since

the award amount is stated to be lying deposited with UCO Bank,

Delhi High Court Branch, New Delhi, a direction shall issue to the

UCO Bank to release the same in favour of the respondents no.1 and

2 to the above extent. The balance shall be refunded to the Appellant.

13. The award amount shall be shared equally by both the

respondents and 50% of the amount awarded to both the respondents

shall be kept in a Fixed Deposit for a period of five years in a

nationalized bank with the provision that they may withdraw the

periodical interest thereon as ordered by the Tribunal. No loan or

advance shall, however, be granted against the said Fixed Deposit

Receipts.

14. The appeal stands disposed of accordingly.

15. The trial court records be sent back to the concerned Tribunal.

REVA KHETRAPAL (JUDGE) December 06, 2010 sk