National Insurance Company Ltd. vs Smt. Santosh & Others.
2011 Latest Caselaw 4167 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                         MAC. APP. 39/2009

                                     Reserved on: 12th August, 2011
                                     Pronounced on: 26.08.2011

NATIONAL INSURANCE COMPANY LTD.                    ...... Appellant

                          Through:   Ms.   Manjusha       Wadhwa,
                                     Advocate

                               Versus

SMT. SANTOSH & OTHERS.                          ...... Respondent

                          Through:   None


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

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                  - No
2.      To be referred to the Reporter or not?        - No
3.      Whether the judgment should be reported
        in the Digest ?                               - No

M.L. MEHTA, J.

1. This appeal is directed against the judgment and award

dated 29th September, 2008 of Presiding Officer, MACT. On

03.03.2002 a jeep, driven by driver Kirpal Singh @ Pappu, at a

fast speed and in a rash and negligent manner hit Jai Pal who

sustained serious injuries and ultimately succumbed to the

injuries. The deceased was aged about 23 years and was stated

to be working as Conductor at a salary of `3,000/- per month. FIR

No. 100/2002 was registered in this regard at Police Station

Vasant Kunj. The offending vehicle was stated to be owned by

one Gurpal Singh Kalsi and was insured with the appellant

insurance company. The legal representatives namely wife,

mother and two minor children of the deceased filed claim

petition under Section 166/140 of M.V. Act for compensation

against the appellant, owner and driver of the offending vehicle.

The Tribunal awarded compensation amounting to `9,40,000/-. In

arriving at this amount of compensation, the Tribunal calculated

annual loss of dependency taking the monthly income to be

`4,500/- and assessed the future income of the deceased to be at

`9,000/- per month and thereby took the average monthly income

to be `6750/- per month (`4,500/- + `9,000/- = `13,500/- divided

by 2 = `6,750/-). From this, the Tribunal deducted 1/3rd as

towards the personal and living expenses of the deceased and the

remaining amount of `4500/- per month (`54,000/- per annum)

was taken as loss of dependency. A multiplier of 17 was applied

to calculate the total loss of dependency which came to

`9,18,000/- (`54,000/- x 17). To this, a sum of `22,000/- was

added as towards funeral expenses and loss of love and affection.

In this way, a total sum of `9,40,000/- was arrived at as

compensation.

2. The impugned award is challenged by the appellant

insurance company on three grounds namely (i) the salary of the

deceased was wrongly calculated; (ii) future prospects were

wrongly assessed and (iii) much higher multiplier was applied.

3. The learned counsel appearing for the appellant placed

reliance on the judgment of Sarla Verma v. Delhi Transport

Corporation & Ors., 2009, ACJ 1298. None appeared for the

respondent.

4. I have perused the record and heard learned counsel for the

appellant.

5. With regard to the submission of learned counsel for the

appellant that the salary was wrongly calculated, it may be noted

that as per evidence, the deceased was a conductor and was

getting `3,000/- per month as salary and `1,500/- per month as

towards his monthly personal expenses. This payment of `1,500/-

was attached with the nature of the job of the deceased as a

conductor. This payment cannot be termed as ex-gratia

payment. In view of the law laid down in the case of Sarla

Verma (supra), since the deceased was not in a permanent

stable job, his monthly income actually earned would be the basis

for the assessment of the dependency loss. Though in view of the

nature of job, there was no element of loss of future prospects,

but the fact remains that we cannot be oblivious of the fact of all

round inflationary trends and rise in prices, an estimated 30% can

be added to his income towards rising prices index. Since the

deceased was getting `1500/- per month towards his personal

expenses attached to his job as a conductor, this amount cannot

be taken to be as a forming part of his regular salary. In this way

the regular monthly income of the deceased can be arrived at

`4500+`1500= `6000. Keeping in view the number of dependants

of the deceased and his nature of job, 1/4th of his income can be

deducted towards his personal and living expenses. In this view of

the matter, the dependency loss of the claimant comes out to be

`6000-1500= `4500/- per month keeping in view the age of the

deceased as 23, a multiplier of 27 would be applicable as per the

Judgment of Sarla Verma (supra). Thus, the total amount on

account of dependency loss comes out to be `54,000X17 =

`9,18,000/-. To this, a sum of `22,000/- can be added towards

funeral expenses and loss of love and affection as awarded by the

Tribunal. In this way, the total amount towards dependency

comes out to be `9,40,000/-. The Tribunal has rightly come to the

conclusion in granting compensation of `9,40,000/- to the

claimant. I do not find any infirmity in the impugned award. The

appeal is hereby dismissed.

M.L. MEHTA

(JUDGE) August 26, 2011 AWANISH