New India Assurance Co.Ltd. vs Omwati & Others
2010 Latest Caselaw 5230 Del

                                 REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+            MAC APP. NO.76/2009


NEW INDIA ASSURANCE CO. LTD.             ..... Appellant
             Through: Mr. D.K. Sharma, Advocate.

             versus

OMWATI AND ORS.                                  ..... Respondents
            Through:            Mr. Anshuman Bal, Advocate.

%                         Date of Reserve : November 10, 2010
                          Date of Decision : November 18, 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

18.11.2010

: REVA KHETRAPAL, J.

This appeal seeks to assail the award dated 11th November,

2008 in the sum of ` 9,87,848/- along with interest @ 8% per annum

from the date of institution of the petition till the date of actual

deposit, passed in favour of the respondents no.1 to 5 and against the

appellant.

2. The brief background leading to the filing of the present appeal

is that the respondents no.1 to 5 had filed a petition under Section 166

of the Motor Vehicles Act, 1988 against the appellant (the insurer)

and the respondents no.6 to 8 (the driver and the owner of the

offending vehicle) for the grant of compensation of ` 20 lakhs for the

death of Sanjay, aged 29 years, who suffered fatal injuries in a

vehicular accident on 28th January, 2007.

3. The grievance of the appellant, who admits the factum of

insurance of the offending vehicle, is that the Motor Accident Claims

Tribunal erred in : -

(i) computing the compensation awardable to the respondents

no.1 to 5 (claimants in the claim petition) on the basis that the

deceased was a skilled workman;

(ii)increasing the figure of minimum wages by 50% on the

premise that the minimum wages are revised from time to time

and the thumb rule is that 50% of the income be added to the

income of the deceased to take care of the inflationary trend;

(iii) applying the multiplier of 18 instead of the multiplier of 17

(iv)deducting 1/4th of the income of the deceased instead of 1/3rd.

4. Mr. D.K. Sharma, the learned counsel for the appellant strongly

contended that the amount of compensation awarded to the

respondents no.1 to 5 by the learned Tribunal was a bonanza and that

the impugned award deserves to be modified/set aside, being based

entirely on surmises and conjectures.

5. According to the learned counsel for the appellant, the family

of the deceased comprised of his widow and two minor children. The

parents of the deceased, who had four sons, could by no stretch of

imagination be presumed to be dependant upon the deceased alone.

Thus, the deduction of 1/4th of the income of the deceased instead of

1/3rd was wholly unjustified.

6. Learned counsel for the appellant further submitted that the

claimants had failed to establish the income and occupation of the

deceased and the Tribunal therefore erred in assessing his income on

the basis that he was a skilled workman and, thereafter, increasing the

figure by 50% on the basis that the minimum wage rate was

susceptible to revision from time to time, keeping in view the

inflationary trend. The contention of the learned counsel was that the

income of a semi-skilled worker should have been taken instead of a

skilled worker. He further submitted that the adoption of the

multiplier of 18 by the learned Tribunal was also unjustified and

impermissible.

7. Mr. Anshuman Bal, the learned counsel for the respondents

no.1 to 5 urged to the contrary, placing reliance upon the evidence

adduced by the claimants on the record. The learned counsel

contended that there was no justification for the Tribunal to have

discarded the statement of PW1, Smt. Omwati, the widow of the

deceased, who testified that the deceased was a milk-vendor by

profession and was earning ` 8000/- per month. More so, as the

aforesaid deposition of PW1 had been corroborated by the testimony

of PW3, Devender, who testified that the deceased was his nephew

and was a milk-vendor like himself and was earning ` 8000/- per

month. Mr. Bal also contended that no fault could be found with the

finding of the Tribunal that the future prospects of the deceased were

to be taken into account for the purpose of computation of the income

of the deceased, keeping in view the fact that in a large number of

decisions of the Supreme Court as well as this Court, judicial notice

had been taken of the fact that the minimum wages are revised from

time to time, resulting in doubling of the figures in a span of 10 years

time. Further, according to him, the multiplier of 18 had been rightly

adopted by the learned Tribunal and there was no justification for

adopting any other multiplier.

8. Having heard the learned counsel for the parties and gone

through the award, this Court is of the view that there is no infirmity

in the judgment of the learned Tribunal in so far as the computation of

compensation is concerned except as regards the multiplier. PW1,

Smt. Omwati and PW3, Sh. Devender categorically deposed that the

deceased used to sell milk by carrying the same in cans from Loni to

Delhi and was earning a sum of ` 8000/- per month. In view of the

fact that there was no documentary proof on record regarding the

income of the deceased, the learned Tribunal, however, assessed the

income of the deceased under the Minimum Wages Act by treating

him as a skilled worker, thereby rejecting the contention of the

appellant that the deceased was earning a sum of ` 8000/- per month.

A skilled worker was entitled to receive minimum wages of ` 3736/-

per month as on 1st of August, 2006 and the Tribunal, therefore

assessed the income of the income of the deceased to be ` 3736/- per

month. It may be noted at this juncture that the contention of the

learned counsel for the appellant that the income of the deceased

should be taken as that of a semi-skilled worker was rightly turned

down by the Tribunal in view of the fact that the deceased was a non-

matriculate, having passed his ninth Standard examinations. Had the

deceased been engaged in any clerical or other allied work, his

income could have been assessed as a non-matriculate, but since the

deceased was engaged in the business of milk-vending, the learned

Tribunal, in my view, rightly treated him as a skilled worker and

adjudged his income to be ` 3736/- per month.

9. To the aforesaid sum of ` 3736/- per month, the Tribunal,

keeping in view the future prospects of the deceased and the law laid

down in Sarla Verma and Ors. vs. Delhi Transport Corporation

and Anr., (2009) 6 SCC 121, added a sum of ` 1868/- , i.e. 50% of

the income of the deceased and thereby arrived at the figure of `

5604/- per month, i.e. ` 67,248/- per annum as the income of the

deceased The Tribunal then deducted 1/4th (one-fourth) towards the

personal and living expenses of the deceased, in consonance with the

decision in Sarla Verma's case (supra) as the deceased had five

dependants and thus the loss of dependency was assessed to be in the

sum of ` 50,436/-. Thus far I find no infirmity in the reasoning and

computation of the Tribunal. Hereinafter, the Tribunal applied the

multiplier of 18 to arrive at the figure of ` 12,10,464/-. As regards

this multiplier, learned counsel for the appellant has urged and I think

rightly so that the multiplier, keeping in view the decision of the

Hon'ble Supreme Court in the case of Sarla Verma (supra), ought to

have been 17 instead of 18.

10. Applying the multiplier of 17, the amount of compensation

comes to ` 8,57,412/-. Accordingly, the appellants are held entitled

to receive the said sum as compensation for the loss of dependency.

Apart from this, the appellants are also held entitled to receive a sum

of ` 5,000/- towards funeral expenses, ` 10,000/- towards loss of

estate and ` 10,000/- towards loss of consortium, in all ` 25,000/- in

lieu of the sum of ` 80,000/- awarded by the Tribunal as non-

pecuniary damages. Thus, in totality the appellants are held entitled

to receive a sum of ` 8,82,412/- (i.e. ` 8,57,412 + ` 25,000), which

may be rounded off to ` 8,82,000/-, with interest @ 8% per annum

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

stands modified accordingly.

11. Disbursement of the award amount shall be in accordance with

the directions contained in paragraph 10 of the award with the

modification that the respondent no.1 shall deposit a sum of

` 2 Lacs in FDR with a nationalized bank for a period of 10 years

instead of a sum of ` 4 Lacs.

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

REVA KHETRAPAL (JUDGE) November 18, 2010 sk