M/S. New India Assurance Co. Ltd. vs Smt. Sushila Dabas & Ors.
2011 Latest Caselaw 4157 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                         MAC. APP. 34/2009

                                       Reserved on: 12th August, 2011
                                  Pronounced on: 26th August, 2011

M/S. NEW INDIA ASSURANCE CO. LTD.                    ...... Appellant

                          Through:    Mr. D.K. Sharma, Adv. for the
                                      appellant.

                                Versus

SMT. SUSHILA DABAS & ORS.                     ...... Respondents

                          Through:    Mr. J.M. Bari, Adv. for           the
                                      respondents 1 to 3 and 7.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.      Whether Reporters of local papers may be
        allowed to see the judgment?     -          Yes
2.      To be referred to the Reporter or not ? -   Yes
3.      Whether the judgment should be reported -   Yes
        in the Digest ?


M.L. MEHTA, J.

1. This appeal is directed against the impugned judgment and

award dated 21.10.2008 of Shri Pradeep Chadha, Presiding Officer,

MACT (hereinafter referred to as 'the Tribunal' for short). Vide the

impugned award, the petition filed by the wife and children of the

deceased Raj Singh Dabas was allowed and a sum of `16,20,000/- was

granted as compensation to them and also the mother of the deceased

who was impleaded as respondent No. 5. The insurance company i.e.

the appellant was directed to pay the aforesaid amount to the

petitioners and the mother of the deceased in the manner as indicated

in the award.

2. The deceased Raj Singh Dabas was aged about 46 years and

stated to be engaged in private business. He met with an accident on

10.12.1994 while he along with his brother was going on a two wheeler

scooter which was struck by a truck being driven in a rash and

negligent manner by its driver. It is pertinent to mention here that Shri

N.K. Goel, Learned Presiding Officer, MACT, vide his judgment and

award dated 25.08.01 had awarded compensation in the sum of

`1,48,000/- to the petitioners and the mother of the deceased. He had

arrived at this conclusion by taking the age of the deceased as 46 years

at the time of his death. The petitioner Sushila Dabas who is the widow

of the deceased had stated that her husband was working as Librarian

in Aurobindo college upto year 1980 when he went to Libya and

returned from there in 1986. Thereafter he could not join his duties and

started doing the work of builder. Since all this was not proved on

record, the learned Tribunal took the income of the deceased as `1586/-

per month the prescribed minimum wages of a semi-skilled worker at

the time of his death. He observed that had the deceased survived, his

income would have increased with passage of time and therefore, he

assessed the income of the deceased for the remaining part of his life

as `2,000/- per month. Making a deduction of 1/4th towards the personal

and living expenses of the deceased, the then Tribunal assessed the

dependency loss of the dependants as `1,500/- per month or say,

`18,000/- per annum. He applied the multiplier of 11 and assessed the

compensation payable as `1,98,000/- (`18,000/- x 11). Since the

petitioners were already paid `50,000/-, they along with the mother of

the deceased were awarded `1,48,000/-.

3. Against the said award, the petitioners preferred appeal before

this Court which remanded the case back to the Tribunal with the liberty

to the petitioners to lead additional evidence. It was on remanding

back the matter to the Tribunal that the statement of the petitioner

Sushila Dabas was again recorded by the Tribunal. Thereafter Mr.

Pradeep Chadha, Ld. Tribunal, awarded compensation amounting to

`16,20,000/- vide the impugned award. In arriving at this amount of

compensation, the learned Tribunal took note of the fresh deposition of

the petitioner Sushila Dabas who had stated that her husband had done

Ph.D. in Zoology from Meerut University and worked as professional

Assistant Librarian in Aurobindo College, University of Delhi. She had

further stated that her husband had gone to Libya in 1981 to work as

Chief Librarian and on his return in 1987, he started his own private

business of builder and was earning not less than `10,000/- per month.

The learned Tribunal took monthly income of the deceased as `15,000/-

based on his salary which he got in Libya in Libyan Dinars 4175 during

the period of his contract with his employer there from 01.07.85 to

31.07.1987. The Tribunal recorded that the deceased would have

earned at least the same amount of `15,000/- per month had he not

expired. On this observation, he proceeded to assess the compensation

by applying the multiplier of 13. After making deduction of 1/3 rd

towards personal expenses of the deceased, the Tribunal arrived at a

figure of `15,60,000/- as the dependency loss of the petitioners and the

mother of the deceased. He added `60,000/- as compensation for loss

of love and affection and thus awarded `16,20,000/- as the

compensation payable to the dependants. The impugned award is in

challenge in the present appeal by the insurance company.

4. I have heard Mr. D.K. Sharma, learned counsel for the appellant

and Shri J.M. Bari, learned Advocate for respondents No. 1 to 3 and 7.

The main challenge of the appellant/insurance company is that the

compensation awarded by Shri Pradeep Chadha, learned Tribunal, is

highly excessive and against the general principles of assessment of

compensation in such cases.

5. There is no dispute that the deceased was aged about 46 years. I

shall also proceed with the admitted fact that the deceased was a Ph.D.

before his leaving for Libya. It is averred that in the year 1981 he

worked as professional Assistant Librarian in Shri Aurobindo College.

There is no evidence as to what was his salary in this position in the

college. Though all this is not properly proved, but, from the

memorandum issued by the college it is seen that he got extra-ordinary

leave of two years with effect from 02.07.1981. Similarly, though, no

sufficient evidence has been led on record as regards his salary at the

time of joining in Libya as Chief Librarian in the year 1981, but from

some correspondence it is seen that he did get a job of Chief Librarian

in the Library of Central Hospital Zuara, Municipality, Al-Nuqat-Al-

Khamees. There is no reason to doubt the testimony of Smt. Sushila

Dabas, who was one of the petitioners, that her husband went to Libya

on 3.7.1981 and returned on 20.07.1986. The learned Tribunal, has

referred to the agreement dated 04.07.1985 regarding terms of

contractual employment of the deceased for a period of two years with

effect from 01.07.1985 to 31.07.1987 at the salary of Libyan Dinars

4174 per annum which comes to `1,80,000/- p.a. Since there is no

evidence led with regard to his previous contract when he joined

services in Libya in July 1981 and his salary of `15,000/- per month was

as per the contract of 1985, it can be said that the salary when he

joined in July 1981 must be quite lesser than what he got in July 1985.

If it was the same or equivalent, the petitioners would have chosen to

prove the same on record as they did to prove the salary starting from

July 1985. It is also a common knowledge that one would prefer to go

abroad to do some service only if he is offered better emoluments or

prospects in comparison to what he is getting here as one would be

required to have an additional establishment there in abroad. If one

gets the same salary as in his own country or equivalent thereto, he

may not prefer to go abroad unless there is some financial gain or other

better prospects in doing so. Keeping in view the fact that there is

nothing on record as to the salary of deceased at the time of leaving

India and/or at the time of joining at Libya, the salary of the deceased

what he was getting after four years of his service at Libya would be the

only guiding factor to proceed further to see his income. As is noted

above, one would go abroad or continue to stay there only if there is

any better financial gain or other better prospects. In the absence of

any evidence, a guess work has to be made that the deceased might

have joined in Libya at the salary of about `10,000/- per month and if

that was so, he might certainly be getting lesser than that in his

position in Aurobindo college else he would not have chosen to go to

Libya. However, all this exercise is not much worthwhile because as per

the widow of the deceased, after returning from Libya her husband

started his personal business as builder. She stated that he was

earning not less than `10,000/- per month. For substantiating that he

was not earning less than `10,000/- per month, she stated about the

deceased to be maintaining a bank account reflecting his high earnings.

No other evidence of any sort has been led to substantiate the plea that

the deceased after his return from Libya started his personal business

as builder and was earning not less than `10,000/- per month. The

bank account referred to by Smt. Sushila, the widow of the deceased,

has been perused which reflects meager and irregular deposits of cash

in his account creating all doubts that deceased at any point of time

was earning `10,000/- per month immediately before or at the time of

his death. It was suggested to her that the deceased was not earning

`10,000/- per month. In answer to this question, she categorically

admitted that after return from Libya, the deceased was not earning

because of his educational qualification and she did not know whether

he was assessed to income tax or not. The learned Tribunal in the

impugned award has also recorded that mere bank transactions cannot

be treated as proof of income of the deceased and that there is no

concrete proof of his earnings between 1987-1994. On the other hand

he proceeded to record that the deceased would at least have earned

same amount of `15,000/- per month after return from Libya had he not

expired. This opinion of learned Tribunal seems to be misplaced.

6. In the absence of there being any cogent evidence as regards the

income of the deceased, and there being also no evidence as regards to

his earning capacity since he was not regularly employed from 1987 till

his death in the year 1994, his income has to be assessed based on his

past earnings with the help of some guess work. In following this there

is doubt in arriving at precise income, but, for the purpose of calculating

compensation in the absence of any evidence, assessment has to be

made on the basis of estimation and in the entire scenario and keeping

in view the fact that the deceased, admittedly, was not regularly

employed since after his return from Libya in 1987, income of the

deceased for the purpose of compensation can be estimated `8,000/-

per month. Since the deceased was not in a regular stable

job/employment, there was no element of any future prospects for

consideration for assessing his income. Thus, estimated income of

`8,000/- per month can be taken as his monthly income for the purpose

of calculating compensation. The family of the deceased comprised of

three petitioners and his mother and hence 1/4th of his income can be

taken towards his personal and living expenses. That being so, the

dependency loss of the petitioners and the mother of the deceased

comes to `6000/- per month (`8,000/- (-)`2,000/- ( i.e. 1/4th of `8,000/- ))

i.e. `72,000/- per annum. In view of the law laid down by the Supreme

Court in the Case of Sarla Verma and others v DTC and another

(2009) ACJ 1298, multiplier of 13 would be applicable and applying this

multiplier the total dependency loss of the dependants comes as

`9,36,000/- (72000x13). The learned Tribunal also awarded `60,000/- as

compensation for loss of love and affection. I do not intend to interfere

in this discretion of the Tribunal. Consequently, the petitioner and the

mother of the deceased are held to be entitled to compensation of

`9,96,000/-. It is seen that a sum of `1,69,126/- has already been

withdrawn by the petitioners from the amount deposited by the

appellant in compliance of the impugned award of the Tribunal. Thus, a

balance a balance of `8,26,874/- is payable to the petitioners [`9,96,000

- `1,69,126/-]. The appellant had deposited `15,69,126/- in the Court.

The appellant shall be entitled to refund of the balance with

proportionate interest that has accrued on the refundable amount. The

payable amount of `8,26,874/- with accrued interest thereon shall be

net amount that is to be disbursed to the claimants. Out of this amount,

a sum of `4 lac shall be payable to Smt. Shushila Dabas (widow of the

deceased), a sum of `2 lac to Ms. Shweta (daughter of the deceased)

and Rs.1 lac to mother of the deceased. Since the amount of

`1,69,126/- which was already been withdrawn was for the benefit of

son of the deceased, the balance amount shall be paid to him. All the

claimants will also be paid proportionate accrued interest on their

entitlements. Half of the share of all the petitioners/claimants shall

remain deposited in FDRs for a period of 3 years. In case of emergent

need or the marriage of Shweta, the claimants will be entitled to seek

withdrawal of the needed amounts prematurely.

7. The appeal stands disposed of accordingly.

M.L. MEHTA (JUDGE) August 26, 2011 AWANISH