Sohan Devi & Anr. vs Abdul Qayaam & Ors.
2010 Latest Caselaw 2493 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of Reserve: April 29, 2010
                                                  Date of Order: May 10, 2010

+ FAO No. 304/1999 & CM Appl. No. 4136/2008
%                                                              10.05.2010

SOHAN DEVI & ANR                                                  ...Petitioners
    Through: Ms. Aruna Mehta, Advocate
    Versus

ABDUL QAYAAM & ORS.                                            ...Respondents
    Through: Mr. Kamaldeep, Advocate for R-3


        JUSTICE SHIV NARAYAN DHINGRA

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

By the present appeal, the appellants have sought enhancement in

compensation awarded by learned MACT vide its award dated 15th February,

1999.

2. Learned MACT considered the age of the deceased as 40 years and

the income of deceased as Rs. 1806/- p.m., on the basis of minimum wages

of a skilled workman, and after deducting 1/3rd from his income, for personal

expenses, applied a multiplier of 14, and awarded a compensation of Rs.

2,01,600/-. The Tribunal also awarded a sum of Rs. 7,000/- towards loss of

consortium.

3. It is submitted by the appellants that the Tribunal did not take into

account the actual income of the deceased about which evidence had come

on record. He was earning Rs. 4,000/- to Rs. 4,500/- p.m. and the mere fact

that the deceased was not paying income tax should not have resulted into

not believing the oral testimony.

4. It was deposed by claimant before the Trial Court that the deceased

was running a factory of moulding. He was doing his business from his self-

owned premises. He was earning around Rs. 4,000/- to Rs. 4,500/- per

month. The only evidence of income produced before the Tribunal was oral

testimony of the claimant. The documents produced before the Trial Court

viz factory licence, telephone bills and a Shop and Establishment Act receipt,

were not reflective of income of deceased.

5. Whosoever runs business, whether at low scale or at higher scale,

maintains account books of the business which reflect his transactions with

customers or clients. The account books also contain the account of material

purchased, amount spent on labour and receipts from sale. On the basis of

these account books, a Profit & Loss Account is prepared at the end of the

year by every professional/businessman which reflects his annual income.

Where a businessman or a professional does not maintain any account books

and does not prepare a Profit & Loss Account, this will only reflect that the

entire business was at such a small scale that the transactions of the entire

year could be memorized by a person. If the business is at that negligible

scale that no account books are maintained, no Profit & Loss Account is

prepared, no Balance Sheet is prepared, the Court cannot depend upon the

oral testimony given by the claimant which has to be self serving. In all such

cases of self-employed persons who are working as Carpenter, mason,

moulder or in any other trade, the Court can only take into account the wages

payable to skilled workman under the statue and the oral testimony of

claimant given about the income of deceased can be of no help because

normally at the time of claim of compensation, the income of deceased is

inflated. Reverse is the case in all cases where maintenance is to be paid, the

income is accordingly reduced to a minimum level. Thus the objective

assessment of income of deceased could not be made, and the income was

taken as minimum wages. The Tribunal rightly took into account the

minimum wages as the basis for calculations. However, the Tribunal erred

in not considering that over the period of time the minimum wages keep

rising due to inflation and fall in the value of rupee. In view of judgments -

(i)"Kanwar Devi Vs. Bansal Roadways, 2008 ACJ 2182" and (ii)

"National Insurance Co. Vs. Renu Devi, 111 (2008) ACC 134", I consider

that Rs. 900/- per month (50%) should have been added in the income

towards inflation. Thus, minimum wages of the deceased should have been

taken as Rs. 2,700/- per month. 1/3rd should have been deducted toward

personal expenses. The, monthly contribution of the deceased towards

family would have been Rs. 1,800/- per month and annual contribution

towards family would have been Rs. 1,800/- x 12 = Rs. 21,600/-. The

deceased was aged about 40 years at the time of his death. As per Sarla

Verma's case, a multiplier of 15 was just and reasonable. I, therefore,

consider that a multiplier of 15 should have been used by the Tribunal

instead of 14. Thus, the total compensation payable to the deceased would be

Rs. 3,24,000/- + Rs. 7,000/- as loss of consortium, as already awarded by

the Tribunal, + Rs. 4,000/- towards expenses for last rites. Thus, a total of

Rs. 3,35,000/- (Rupees Three Lacs Thirty Five Thousand only) would be the

just and reasonable compensation in this case. I find that the Tribunal has

awarded 12 per cent interest. Looking into the fact that accident had taken

place in the year 1994, I consider that an interest @ 10% was just and proper.

Thus, award passed by the Tribunal is modified. The appellants are held

entitled to a compensation of Rs. 3,35,000/- (Rupees Three Lacs Thirty

Five Thousand only) with 10 per cent interest from the date of claim. The

respondent insurance company is directed to pay the difference in amount, as

awarded by the Tribunal and the enhanced amount, within 30 days to the

appellants Smt. Sohan Devi and Shri Purshotam.

May 10, 2010                            SHIV NARAYAN DHINGRA J.
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