Gajraj Singh & Another vs Balraj Singh & Others
2010 Latest Caselaw 5570 Del

                                 REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  MAC.APP. 377-78/2006

GAJRAJ SINGH & ANR.                              ..... Appellants
                     Through:        Mr. Navneet Goyal, Advocate
              versus
BALRAJ SINGH & ORS.                             ..... Respondents
                     Through:        Mr. Madhurendra Kumar,
                                     Advocate for Mr. Joy Basu,
                                     Advocate for the respondent
                                     No.3

%                         Date of Decision : December 7, 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.

1. The appellants in this appeal are the parents of Sanjeev Singh

Chauhan, who was fatally injured in a motor vehicle accident on 22nd

May, 1995 caused by bus No.DL-1P-5426. The respondent No.1 is

the driver of the offending bus, the respondent No.2 is the owner and

the respondent No.3 is the insurer, which has not disputed the fact

that the offending vehicle was duly insured with it at the time of the

accident.

2. The learned Motor Accident Claims Tribunal after considering

the evidence on record passed an award of ` 2,69,600/- in favour of

the appellants No.1 and 2 with interest at the rate of 6% per annum

from the date of the filing of the petition till realization. Aggrieved

therefrom, the appellants have filed the present appeal for

enhancement of the award amount.

3. Mr. Navneet Goyal, the learned counsel for the appellants

assailed the award on the following three grounds:-

(i) The learned Tribunal erred in taking the income of the

deceased to be in the sum of ` 2,400/- per month when

the salary of the deceased at the time of his death was

conclusively proved on record as ` 5,876/- per month.

(ii) The learned Tribunal while computing the income of the

deceased for the purpose of calculation of the loss of

dependency failed to take into account the future

prospects of the deceased on the ground that the

deceased would have eventually got married and would

have spent his income on his family.

(iii) The learned Tribunal lost sight of the fact that the

deceased was an accomplished guitarist and there was

documentary evidence on record to show that he had

been twice called to the All India Radio and on each

occasion was given a sum of ` 150/- for a performance

of 10 minutes. There was also on record a letter written

by Orchestra Chatterjee's stating that they were giving

him a sum of ` 2,000/- per month for playing the guitar.

4. Mr. Goyal pointed out that the learned Tribunal in paragraph 9

of its judgment has made a mention that the appointment letter of the

deceased dated January 30, 1995 (Exhibit PW-2/31) shows that the

deceased was appointed as a Sales Executive with Maxworth Orchard

(India) Ltd. on a basic salary of ` 1,925/- inclusive of D.A., and he

was also entitled to HRA of ` 385/-, Metro City Allowance of `

500/- and LTA of one month basic salary every year, besides

reimbursement of conveyance expenses. The Tribunal further noted

that there is another letter dated 29th March, 1995 (Exhibit PW-2/32),

effective from 01.04.1995, which shows basic salary as ` 1,925/-,

HRA ` 577/-, Conveyance ` 950/-, MCA ` 500/-, Leave Travel

Allowance two months basic salary per annum. It then noted that the

salary certificate of the deceased Exhibit PW-2/1, which is dated

26.09.1995, shows basic as ` 1,925/-, HRA ` 578/-, Conveyance `

950/-, Metro City Allowance ` 500/- and Daily Allowance ` 1,250/-

besides other allowances. This salary certificate Exhibit PW-2/1, the

Tribunal further noted, had given upward revision of salary to the

deceased with effect from 01.04.1995. Mr. Goyal contended that this

was factually wrong, inasmuch as it was by letter dated March 29,

1995 (Exhibit PW-2/32) that the Company had made upward revision

in the salary package of the deceased effective from 01.04.1995 and

not by the salary certificate dated 26.09.1995. There was, therefore,

no justification for the Tribunal to take the income of the deceased at

` 2,400/- per month, more so, as the deceased was a graduate and a

Sales Executive in a Limited Company, apart from being a proficient

guitar player.

5. In support of his first contention, Mr. Goyal has relied upon a

recent judgment of the Hon'ble Supreme Court rendered in Civil

Appeal No.5316/2010 [arising out of SLP(C) No.668/2008]

Shyamwati Sharma & Ors. vs. Karam Singh & Ors.] dated 13th July,

2010 wherein the Supreme Court clarified that while ascertaining the

income of the deceased any deductions shown in the salary certificate

as deductions towards GPF, Life Insurance premium, repayment of

loans, etc. should not be excluded from the income of the deceased.

The Court further clarified that the deduction towards income-

tax/surcharge alone should be considered to arrive at the net income

of the deceased.

6. In support of his second contention, Mr. Goyal relied upon the

judgment of the Supreme Court in Smt. Sarla Verma and Ors. vs.

Delhi Transport Corporation and Anr. (2009) 6 SCC 121, wherein

the principles relating to the "addition to income towards future

prospects" have been laid down and it has been held that as a thumb

rule wherever the deceased was below 50 years of age and had a

permanent job, the actual salary (less tax) should be increased by 50%

towards future prospects, to arrive at his monthly income.

7. As regards his third contention, Mr. Goyal contended that there

were several documents on record to show that the deceased was

proficient in playing the guitar and was being called by All India

Radio to give performances and this factor should also have been kept

in mind by the learned Tribunal while assessing the income of the

deceased.

8. Mr. Madhurendra Kumar, the learned counsel for the

respondent No.3, on the other hand, attempted to support the award

by contending that a just and fair compensation had been awarded to

the appellants which called for no interference from this Court.

9. Dealing with the last contention of Mr. Goyal first, the Tribunal

has held, and I think rightly so, that though the appellants have

proved that the deceased was expert in playing guitar and twice he

was called to All India Radio for performances copy of All India

Radio certificate dated 16th December, 1994 Exhibit PW-2/3 is placed

on record and on each occasion he was given a sum of ` 150/-, but

these occasional payments are not to be taken into consideration. As

regards the letter dated 27th August, 1995 (Exhibit PW-2/2) written by

Orchestra Chatterjee's stating that they were giving the deceased a

sum of ` 2,000/- per month for playing the guitar, the Tribunal has

discarded the same as unworthy of inspiring confidence, and I see no

reason to disagree, in view of the fact that this organization was

working at Aligarh whereas the deceased was employed at Noida.

10. As regards the first and second contentions of Mr. Goyal, I find

that a bare glance at the salary certificate (Exhibit PW-2/1) coupled

with the letter of Maxworth Orchard (India) Ltd. dated 29th March,

1995 enclosing the salary statement of the deceased as effective from

01.04.1995, make it amply clear that the deceased was drawing a

salary of ` 5,876/- per month, i.e., ` 70,512/- per annum. After

deducting tax therefrom, the salary of the deceased works out to `

67,410/-. In consonance with the judgment of the Supreme Court in

Sarla Verma's case (supra), an addition of 50% towards future

prospects is required to be made. Thus calculated, the income of the

deceased for the purpose of computation of loss of dependency works

out to ` 1,01,115/-. Deducting one half therefrom towards the

personal expenses and maintenance of the deceased, the loss of

dependency works out to ` 50,558/- per annum. The Tribunal has

applied the multiplier of 13 keeping in view the fact that the father of

the deceased was 49 years of age at the time of his death, but I find

that the mother of the deceased, the appellant No.2 herein, was 44

years of age at the time of his death and thus the multiplier should

have been the multiplier of 14 instead of the multiplier of 13, as set

out in the chart contained in paragraph 19 of the decision of the

Supreme Court in Sarla Verma (supra). Applying the multiplier of

14, the total loss of dependency of the appellants works out to `

7,07,812/-. The Tribunal has awarded a sum of ` 5,000/- for funeral

expenses and a sum of ` 15,000/- towards loss of love and affection.

These additions called for no alteration. However, a sum of ` 5,000/-

is being added towards the loss of the estate of the deceased.

11. Hence, in all, the appellants are held entitled to a compensation

of ` 7,32,812/- with interest at the rate of 6% per annum from the

date of the filing of the petition till realization. The award stands

modified accordingly.

12. The appeal is disposed of in the above terms.

REVA KHETRAPAL (JUDGE) December 7, 2010 km