The New India Assurance vs Divya Pahwa And Ors
2010 Latest Caselaw 1390 Del

21
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                  +    MAC.APP.No.1048/2006

                              Date of Decision: 12th March, 2010
%

      THE NEW INDIA ASSURANCE       ..... Appellant
                    Through : Mr. Pankaj Seth, Adv.

                   versus

      DIVYA PAHWA AND ORS         ..... Respondents
                   Through : Mr. Rajiv Bajaj, Adv.
                             for R-1 to 5 along with R-1.


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 award of the learned

Tribunal whereby compensation of Rs.17,85,000/- has been

awarded to claimants/respondents No.1 to 5. The appellant

seeks the reduction of the award amount.

2. The accident dated 25th March, 1997 resulted in the

death of Parmod Kumar Pahwa. The deceased was survived

by his widow, two minor children and parents who filed the

claim petition before the learned Tribunal.

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

the accident and was carrying on business of sale of

electronic goods in Thailand. It was claimed by the claimants

that the deceased was earning 50,000/- Baht per month,

equivalent to Rs.74,000/- per month in Indian currency. The

Claims Tribunal took the income of the deceased as

Rs.25,000/- per month, deducted 30% towards the Income

Tax and 1/3rd towards the personal expenses of the deceased

and applied the multiplier of 12 to compute the loss of

dependency at Rs.16,80,048/-. Rs.25,000/- has been

awarded towards loss of love and affection, Rs.25,000/-

towards loss of consortium, Rs.50,000/- towards cost of air

travel of the claimants to India and Rs.5,000/- towards the

funeral expenses. The total compensation awarded is

Rs.17,85,000/-.

4. The learned counsel for the appellant has urged at the

time of hearing of this appeal that the income of the

deceased has not been duly proved and, therefore, minimum

wages be taken into consideration for computation of

compensation.

5. The learned counsel for claimants/respondents No.1

to 5 submit that the income of the deceased has been duly

proved. The learned counsel for claimant/respondent Nos.1

to 5 has made following submissions:-

(i) The Claims Tribunal has erred in deducting 30%

towards the Income Tax. After permissible

deduction, the Income Tax cannot be more than

10% of the income.

(ii) The Claims Tribunal has deducted 1/3rd towards

the personal expenses whereas the appropriate

deduction should have been 1/4th considering that

the deceased left behind five legal

representatives.

(iii) The Claims Tribunal has applied the multiplier of

12 whereas the appropriate multiplier considering

the age of the deceased is 15.

(iv) The Claims Tribunal has awarded lower rate of

interest of 7% per annum against 7.5% per

annum.

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

of the deceased appeared before the Claims Tribunal as

PW-4 and deposed that the deceased was carrying on the

business of readymade garments, electronics and cosmetics

and was earning 14,000/- Baht per month equivalent to

Rs.25,000/- per month in Indian currency. She further

deposed that her husband was Income Tax payee. The

certificate of withholding of Tax was proved as Ex.PW4/1 and

Ex.PW4/2. The deceased had a bank account in Thailand

Military Bank and the statement of account was exhibited as

Ex.PW4/3. The copy of the another statement of account in

the same Bank was exhibited as Ex.PW4/4. PW-4 further

deposed that the deceased used to give 12,000 Baht for

household expenses. The son of the deceased was studying

at that time in 7th Standard in Thai Sikh International School.

The receipt of the school fees was placed on record. The

deceased was maintaining a car. The deceased was also

maintaining a servant in his house. The deceased visited

India two days before the accident for admission of his son in

Nainital and had brought Rs.1,00,000/- for the said

admission. The family of the deceased returned back to

India on receiving the news of his death after spending

Rs.50,000/- as air fare. The business of the deceased was

closed after his death.

7. From the aforesaid evidence on record, this Court is of

the view that the income of the deceased at the time of the

accident was Rs.15,000/- per month. The Claims Tribunal

has deducted 30% towards Income Tax, 1/3rd towards

personal expenses and applied the multiplier of 12 which is

contrary to law. The Income Tax, after permissible

deductions, would be 10% of the income of the deceased.

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

the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129, the personal expenses

of the deceased should have been taken as 1/4th and the

multiplier of 15 should have been applied. The appropriate

rate of interest according to the judgment of the Hon'ble

Supreme Court in the case of Dharampal & Ors. vs. U.P.

State Road Transport Corporation, III 2008 ACC (1) SC

is 7.5%.

8. Taking the income of the deceased to be Rs.15,000/-

per month, deducting 10% towards the Income Tax and 1/4 th

towards the personal expenses of the deceased and applying

the multiplier of 15, the loss of dependency is computed as

Rs.18,22,500/-. Adding Rs.25,000/- towards loss of love and

affection, Rs.25,000/- towards loss of consortium,

Rs.50,000/- for air travel of the claimants and Rs.5,000/- for

funeral expenses, the total compensation is computed to be

Rs.19,27,500/-. However, since the claimants have not filed

the cross-objections, enhancement is not warranted.

9. This case is squarely covered by Section 167 of the

Indian Evidence Act which is reproduced hereunder:-

"Section 167 - No new trial for improper admission or rejection of evidence -

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision."

10. Improper admission or rejection of evidence is not by

itself a ground for reversal of a decision, if there is other

evidence to support it. Where admissible evidence has been

improperly rejected or inadmissible evidence has been

admitted by the Judge, such improper reception or rejection

of evidence shall not of itself be a ground for new trial or

reversal of any decision in any case, unless substantial

wrong or miscarriage of justice has been thereby occasioned;

or, in other words, if the Court considers that after leaving

aside the evidence that has been improperly admitted, there

was enough evidence on the record to justify the decision of

the lower court, or that if the rejected evidence were

admitted the decision ought not have been affected thereby,

no Court of appeal should set it aside.

11. An objection to the improper admission of evidence is

material only if it can be shown that the exclusion of

evidence improperly admitted is fatal to the decision. A

finding will not, therefore, be disturbed if, throwing aside the

evidence which ought not to have been admitted, there, still

remains sufficient evidence to support the finding. Under

Section 167 of the Evidence Act, the improper admission of

evidence is not in itself ground for a new trial or reversal of

decision, if independently of the evidence of improperly

admitted there is sufficient evidence to justify the decision.

12. In Owners & Parties vs. Fernandeo Lopez, AIR

1989 SC 2206, the Hon'ble Supreme Court held as under:-

"Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of

justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system." (Para 18)

13. In Emperor vs Ermanali & Ors., AIR 1930 Calcutta

212, Full Bench of Calcutta High Court held as under:-

"Rules and Regulations are intended to be the handmaid and not the mistress of the law, and that in criminal proceedings it is of the utmost importance that a decision just, and reasonable on the merits should not be disturbed because in the course of the proceedings some flaw can be detected that is not fundamental and which is not proved to have worked injustice to the accused, although it may constitute a breach of the rules of criminal procedure." (Para 33)

14. In John vs Sherthali Muncipality, AIR 1959 Kerala

323, the Kerala High Court held as under:-

"It is therefore clear that the learned Magistrate committed a grave error in examining the accused person without his request and against his protest, to prove a fact which the prosecution should have established by other evidence. That, however, is in my opinion, no ground to quash the entire proceedings, Section 167, Indian Evidence Act, 1872 provides inter alia that improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify

the decision. The question whether the prosecution was sustainable or the conviction was rightly made has therefore to be examined eschewing altogether the evidence furnished by the accused while under examination as a court witness."

15. The award of Rs.17,85,000/- of the Claims Tribunal is

upheld for the reasons mentioned above. The appeal is

dismissed.

16. The appellant has deposited the entire award amount

along with interest with the Claims Tribunal. The Claims

Tribunal is directed to release 10% of the amount to

respondent No.1. The remaining 90% of the amount be kept

in fixed deposit in the following manner:-

(i) Fixed deposit in respect of 10% of the amount in

the name of respondent No.5 for a period of one

year.

(ii) Fixed deposit in respect of 10% of the amount in

the name of respondent No.1 for a period of two

years.

(iii) Fixed deposit in respect of 10% of the amount in

the name of respondent No.4 for a period of three

years.

(iv) Fixed deposit in respect of 10% of the amount in

the name of respondent No.1 for a period of four

years.

(v) Fixed deposit in respect of 10% of the amount in

the name of respondent No.2 for a period of five

years.

(vi) Fixed deposit in respect of 10% of the amount in

the name of respondent No.3 for a period of six

years.

(vii) Fixed deposit in respect of 10% of the amount in

the name of respondent No.3 for a period of seven

years.

(viii) Fixed deposit in respect of 10% of the amount in

the name of respondent No.1 for a period of eight

years.

(ix) Fixed deposit in respect of 10% of the amount in

the name of respondent No.1 for a period of nine

years.

17. The interest on the aforesaid fixed deposits of

respondents No.1 to 3 shall be paid monthly by automatic

credit of interest in the Savings Account of respondent No.1.

The interest on the fixed deposits of respondents No.4 and 5

shall be paid monthly by automatic credit of interest in the

Savings Account of respondent No.5.

18. Withdrawal from the aforesaid account shall be

permitted to respondents No.1 and 5 after due verification

and the Bank shall issue photo Identity Card to respondents

No.1 and 5 to facilitate identity.

19. No cheque book be issued to respondents No.1 and 5

without the permission of this Court.

20. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to respondents No.1 and 5 and the maturity

amount of the FDRs be automatically credited to the Saving

Bank Account of the beneficiaries at the end of the FDR.

21. No loan, advance or withdrawal shall be allowed on the

said fixed deposit receipts without the permission of this

Court.

22. Half yearly statement of account be filed by the Bank in

this Court.

23. On the request of respondents No.1 and 5, the Bank

shall transfer the Savings Account to any other branch

according to the convenience of respondents No.1 and 5.

24. Respondent Nos.1 to 5 shall furnish all the relevant

documents for opening of the Saving Bank Account and Fixed

Deposit Account to Mr. M.M. Tandon, Member-Retail Team,

UCO Bank Zonal, Parliament Street, New Delhi.

25. The previous order of release passed by this Court

stands modified to the above extent and, if any existing FDR

has to be renewed, it may be done by the Bank within the

ambit of this order.

26. The learned counsel for claimants/respondents No.1

to 5 submit that some more amount may be released to

respondent No.1 at this stage. Liberty given to respondent

No.1 to move an appropriate application after utilization of

the amount directed to be released.

27. All pending applications stand disposed of.

28. The statutory amount deposited by the appellant be

returned back to the appellant through counsel within four

weeks

29. Copy of the order be given dasti to counsel for both the

parties under the signatures of the Court Master.

30. Copy of this order be also sent to Mr. M.M. Tandon,

Member-Retail Team, UCO Bank Zonal, Parliament Street,

New Delhi (Mobile No. 09310356400) through the UCO Bank,

High Court Branch under the signature of Court Master.

J.R. MIDHA, J

MARCH 12, 2010 mk