Basant Lal vs Smt. Dhanwati Devi & Ors
2010 Latest Caselaw 1507 Del

14 & 15
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of Decision: 18th March, 2010
%

                             +      FAO 165/1994

       BASANT LAL                                ..... Appellant
                                 Through : Mr. Vinod Diwakar, Adv.

                    versus

       SMT. DHANWATI DEVI & ORS       ..... Respondents
                    Through : Mr. Rajiv K. Garg and
                              Mr. Vineet Garg, Advs.
                              Mr. Pankaj Seth, Adv.for R-3.

                             +      FAO 230/1994

       SMT.DHANWATI DEVI & ORS       ..... Appellants
                    Through : Mr. Rajiv K. Garg and
                              Mr. Vineet Garg, Advs.

                    versus

    RAM NIWAS VERMA & ORS          ..... Respondents
                  Through : Mr. Vinod Diwakar, Adv.
                             for R-2.
                             Mr. Pankaj Seth, Adv.for R-3.
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)

The appellants have challenged the award of the

Claims Tribunal whereby compensation of Rs.2,16,000/- has

been awarded to the claimants. The appellants in

FAO.No.230/1994 are seeking enhancement of the award

amount whereas the appellant in FAO.No.165/1994 is

seeking reduction of the award amount and the unlimited

liability of the Insurance Company to pay the award amount.

FAO.No.230/1994

1. The accident dated 14th September, 1987 resulted in

the death of Lakhpat Singh. The deceased was survived by

his widow, one minor son, two minor daughters and mother

who filed the claim petition before the Claims Tribunal.

2. The deceased was aged 40 years at the time of the

accident and was self-employed carrying on the business of

motor starter in the name of M/s Simplex Electricals. The

deceased was carrying on the said business for the last 10

years before the accident. It was claimed that the deceased

was earning Rs.4,000/- to Rs.4,500/- per month from the said

business. The deceased had installed one lathe machine,

one drill machine, one press machine and one painting

machine in the factory and three workers were working

under him. In the absence of any documentary evidence of

income, the Claims Tribunal took the income of the deceased

as Rs.2,000/- after deduction of the personal expenses of the

deceased and the multiplier of 9 was applied to compute the

loss of dependency at Rs.2,16,000/-.

3. The learned counsel for the appellants has urged the

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

      (i)    The    income   of   the   deceased   be   taken    as

             Rs.4,000/- per month.

(ii) The multiplier be enhanced from 9 to 15.

(iii) The compensation be awarded for loss of

consortium, loss of love and affection, loss of

estate and funeral expenses.

4. With respect to the occupation and income of the

deceased, the widow of the deceased came in the witness

box as PW-3 and deposed that the deceased was carrying on

the business of motor starter in the name of M/s Simplex

Electricals for the last 10 years before the accident and the

deceased used to pay Rs.3,000/- to Rs.3,500/- per month to

her for household expenses. PW-3 further deposed that the

deceased had employed three workers in his factory and had

installed lathe machine, drill machine, press machine and

painting machine and the deceased was paying rent of

Rs.900/- per month. PW-3 further deposed that the said

business was closed after the death of the deceased. The

landlord of the deceased also appeared in the witness box as

PW-1 and corroborated the statement of widow. The

registration certificate of the factory under Shop and

Establishment Act was also placed on record before the

Claims Tribunal. The statements of PW-1 and PW-3 proved

the occupation of the deceased but there is no documentary

evidence of income of the deceased. In the absence of any

documentary proof of income of the deceased, the Claims

Tribunal was justified in drawing a presumption under

Section 114 of the Indian Evidence Act with respect to the

income of the deceased. The Claims Tribunal has held that

the deceased was contributing Rs.2,000/- per month to her

family and the loss of dependency of the family has been

taken to be Rs.2,000/- per month. The finding of the Claims

Tribunal in this regard is fair and reasonable and does not

call for any interference.

5. The deceased was aged 40 years at the time of the

accident and the appropriate multiplier according to the

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

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale

129 is 15. The Claims Tribunal has applied the multiplier of

9 which is enhanced to 15. Taking the monthly dependency

of the appellants to be Rs.2,000/- and applying the multiplier

of 15, the loss of dependency is computed to be

Rs.3,60,000/- (Rs.2,000 x 12 x 15). The Claims Tribunal has

not awarded any compensation for loss of love and affection,

loss of consortium, loss of estate and funeral expenses.

Rs.15,000/- is awarded towards loss of love and affection,

loss of consortium, loss of estate and funeral expenses. The

appellants are entitled to the total compensation of

Rs.3,75,000/-.

6. The appeal is allowed and the award amount is

enhanced from Rs.2,16,000/- to Rs.3,75,000/-. The Claims

Tribunal has awarded interest @12% per annum which is not

disturbed on the original award amount of Rs.2,16,000/-.

However, on the enhanced award amount, the rate of

interest shall be 7.5% per annum from the date of filing of

the claim petition up to the date of notice of deposit under

Order XXI Rule 1 of the Code of Civil Procedure.

FAO.No.165/1994

1. The learned counsel for the appellant has urged the

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

(i) The quantum of compensation awarded by the

Claims Tribunal be reduced.

(ii) The liability of respondent No.7, New India

Assurance Co. Ltd. be held to be unlimited.

2. With respect to the quantum of compensation, all the

legal aspects have been examined in FAO.No.230/1994 and

the award amount has been enhanced to Rs.3,75,000/-. No

ground for reduction of the award amount is made out in this

appeal.

3. With respect to the liability of New India Assurance Co.

Ltd., it is noted that the Divisional Manager of New India

Assurance Co. Ltd. appeared as RW-1 and proved the carbon

copy of the cover note as Ex.RW1/A, the receipt of the

premium as Ex.RW1/B, notice under Order XII Rule 8 of the

Code of Civil Procedure as Ex.RW1/C and carbon copy of the

policy as Ex.RW1/D. The Insurance Company charged the

premium of Rs.240/- for third party risk and Rs.16/- in respect

of the liability for the driver and cleaner. RW1 further

deposed the no extra premium has been charged for

unlimited third party risk. The original policy - Ex.RW1/D

contains the clause that the limit of the Insurance Company's

liability under Section II(I)(ii) in respect of any one claim or

series of claims arising out of one event shall be

Rs.1,50,000/-. The Claims Tribunal has rightly held the

liability of Insurance Company to be limited to Rs.1,50,000/-

which is upheld.

4. The appeal is dismissed. No costs.

J.R. MIDHA, J

MARCH 18, 2010 aj