Delhi High Court

Mohit Chopra & Ors. vs Mohd. Israil & Ors. on 8 July, 2011

Author: J.R. Midha

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.543/2004

%                                     Date of decision: 8.7.2011

      MOHIT CHOPRA & ORS.                    ...Appellants
                   Through : Mr. VInay Kumar Chopra and
                             Mr. Mohit Chopra, Advs.

                          versus

      MOHD. ISRAIL & ORS.                       ...Respondents
                     Through : Mr. M.K. Tiwari, 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?

J.R. Midha, J.

1. The appellant has challenged the common award of the

Claims Tribunal whereby the Claims Tribunal has awarded

Rs.9,44,000/- in respect of the death of Dr. (Mrs.) Kamal Mohini

Chopra, Rs.55,000/- in respect of the injuries suffered by her

husband, Mr. Vinay Chopra and Rs.34,000/- in respect of the

injuries suffered by her son, Mr. Mohit Chopra.

2. The appellants have filed one common appeal in respect of

the common award passed in three claim petitions. However,

the learned counsel for the appellants does not press for

enhancement of compensation in two injury cases. In that view

of the matter, this appeal is treated to be in respect of the death

case only.

3. The accident dated 2nd December, 1998 resulted in death

of Dr. (Mrs.) Kamal Mohini Chopra and injuries to her husband,

Mr. Vinay Chopra and her son, Mr. Mohit Chopra. The deceased

was aged 54 years at the time of the accident and was survived

by her husband and two sons who filed the claim petition before

the Claims Tribunal.

4. The deceased was a medical surgeon. The deceased was

holding a degree in Master of Surgery in Obstetrics and

Gynaecology which was proved as Ex.PW2/1. The deceased was

having a private clinic at Darya Ganj and was also attached with

Shyam Lal Nursing Home, Darya Ganj and Sona Nursing Home,

Darya Ganj. The deceased was an Income-Tax assessee. As per

the acknowledgement of the Income-Tax return for the year

1997-1998 proved as Ex.PW2/2, her income during that year

was Rs.1,53,177.48 out of which her income from the medical

profession was Rs.1,36,626/- and the remaining income of

Rs.16,551.48 was towards the interest and dividends on the

investment and savings. As such, the income of the deceased

from profession for the assessment year 1997-1998 was

Rs.1,36,626/-. The Income-Tax returns of the deceased for the

year 1998-1999 and 1999-2000 proved as Ex.PW2/3 and

Ex.PW2/4, were filed after her death but they related to her

income before her death. However, the Claims Tribunal

discarded the Income-Tax returns for the years 1998-1999 and

1999-2000 on the ground that the same were filed after her

death. The Claims Tribunal took the income of the deceased at

Rs.1,37,000/- on the basis of her Income-Tax return for the

assessment year 1997-1998. The Claims Tribunal added

Rs.31,500/- towards her future prospects and took the income of

the deceased at Rs.1,68,500/- per annum for the purposes of

computation of compensation, deducted 1/3rd towards her

personal expenses and deducted Rs.11,500/- towards

Income-Tax. The annual loss of dependency was taken at

Rs.1,01,000/-. The Claims Tribunal added Rs.3,000/- per month

towards the value of her services towards her family and applied

the multiplier of 9 to compute the loss of dependency of the

appellants to be Rs.9,09,000/-. Rs.15,000/- has been awarded

towards the loss of estate and consortium and Rs.20,000/- has

been awarded towards funeral expenses. The total

compensation awarded is Rs.9,44,000/-.

5. The learned Senior Counsel for the appellant seeks

enhancement of the award amount on the following grounds:-

(i) The multiplier be enhanced from 9 to 11.

(ii) The income of the deceased be taken as

Rs.2,52,639/- as per the last Income-Tax return of the

deceased for the year 1999 - 2000.

(iii) The future prospects be enhanced from Rs.31,500/-

to 50% of the income of the deceased.

(iv) The compensation be awarded for loss of love and

affection.

6. The Claims Tribunal has applied the multiplier of 9.

However, the appropriate multiplier at the age of 54 as per the

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

Verma v. Delhi Transport Corporation, AIR 2009 SC 3104

is 11. Following the aforesaid judgment, the multiplier is

enhanced from 9 to 11.

7. The professional income of the deceased as per the

Income Tax Returns was Rs.1,36,626/- for the year 1997-98,

Rs.1,91,803.50 for the year 1998-99 and Rs.1,68,426.92 for the

year 1999-2000. The last Income-Tax Return for the year 1999-

2000 contains income of the deceased for a period of eight

months, i.e. with effect from 1st April, 1998 up to her death on

2nd December, 1998 and was filed after her death. The said

return contains the particulars of the TDS deducted from the

amount paid by Shyam Lal Nursing Home to the deceased. The

Claims Tribunal discarded the last Income-Tax return on the

ground that it was filed after her death. However, the Claims

Tribunal ignored the relevant fact that the said return was filed

within the prescribed period for filing the return after the end of

the financial year and also contained particulars of the

payments made by Shyam Lal Nursing Home after deducting

TDS. In the case of Dalvinder Kaur vs. United India Insurance,

FAO No.524/2003 dated 25th March, 2010, this Court has held

that the filing of Income-Tax Return after the death of the

deceased was no ground for disregarding the same. In that view

of the matter, the income of the deceased at the time of her

death is taken to be Rs.1,68,426/-. The said income pertains to

the period of eight months and, therefore, the annual income of

the deceased is taken to be Rs.2,52,639/- (Rs.1,68,426/- X 12/8).

The Income-Tax of Rs.39,528/- is deducted from the said amount

and the net annual income of the deceased is taken to be

Rs.2,13,111/- (Rs.2,52,639/- - Rs.39,528/-).

8. The Claims Tribunal has added Rs.31,500/- towards her

future prospects. Learned counsel for the appellants submits

that the future prospects of the deceased be taken as 1/2

instead of Rs.31,500/-. The learned counsel for respondent No.3

opposes the addition of future prospects on the ground that the

Hon‟ble Supreme Court in the case of Sarla Verma (supra) has

held that no future prospects are to be awarded if the age of

deceased is above 50 years. It is submitted that the deceased

was aged 54 years and, therefore, no increase towards future

prospects is warranted.

9. The learned counsel for the appellants has referred to and

relied upon the judgment of the Hon‟ble Supreme Court in the

case of K.R. Madhusudhan vs. The Administrative Officer,

1(2011) ACC 700 (SC) in which the Hon‟ble Supreme Court

awarded future prospects in respect of the deceased aged more

than 50 years on the ground that the judgment of Sarla Verma

vs. DTC (supra) permits the future prospects to be awarded in

respect of deceased aged more than 50 years in rare and

exceptional cases involving special circumstances. It is

submitted that the deceased in the present case was a leading

doctor at the peak of her career and this case falls within the

exceptional circumstances. The relevant portion of the judgment

of the Hon‟ble Supreme Court in the case of K.R.

Madhusudhan vs. The Administrative Officer (supra) is as

under:-

"8. The law regarding addition in income for future prospects has been clearly laid down in Sarla Varma (Smt.) and Ors. v. Delhi Transport Corporation and Anr. VI (2009) SLT 663 = 162 (2009) DLT 278 (SC) = III (2009) ACC 708 (sc) = (2009) 6 SCC 121 and the relevant portion reads as follows:

In Susamma Thomas this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"]. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased

was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.

9. In the Sarla Verma (supra) judgment the Court has held that there should be no addition to income for future prospects where the age of the deceased is more than 50 years. The learned Bench called it a rule of thumb and it was developed so as to avoid uncertainties in the outcomes of litigation. However, the Bench held that a departure can be made in rare and exceptional cases involving special circumstances. We are of the opinion that the rule of thumb evolved in Sarla Verma (supra) is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.

10. The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the `exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects."

10. Learned counsel for the appellant also refers to and relies

upon the judgments of this Court in the cases of Shobha Gulhar

vs. Ram Pal bearing MAC.APP.No.293/2008 dated 19th

November, 2009, Umakant vs. DTC bearing FAO No.15/2001

dated 23rd April, 2010 and Abha Gupta vs. Duli Chand bearing

MAC.APP.No.298-300/2005 dated 25th February, 2011, in which

this Court has awarded future prospects taking into

consideration the exceptional circumstances.

11. In the present case, the deceased was a highly qualified

surgeon at the peak of her professional carrier and her income

was gradually increasing. This case, therefore, falls within the

„exceptional circumstances‟ and is squarely covered by the

judgment of the Hon‟ble Supreme Court in the case of K.R.

Madhusudan (supra). Following the judgments of the Hon‟ble

Supreme Court as well as this Court, 30% of the income of the

deceased is added towards the future prospects.

12. The Claims Tribunal has not awarded any amount for loss

of love and affection. A sum of Rs.10,000/- is awarded towards

the loss of love and affection.

13. The appellant is entitled to total compensation of

Rs.23,40,658 as per the break-up given hereunder:-

(i) Annual Income of the deceased : Rs.2,13,111/-

(Add) : 30% towards future prospects : Rs.63,933.30

Total : Rs.2,77,044.30

(Add) : Value of her services towards : Rs.36,000/-

her family (Rs.3,000/- per month)

Total : Rs.3,13,044.30

(Less) : 1/3rd towards her personal : Rs.1,04,348.10 Expenses

Total : Rs.2,08,696.20

Applying Multiplier of 11 : Rs.22,95,658.20 (Rs.2,08,696.20 x 11)

(Add) : Loss of estate and consortium : Rs.15,000/-

              Funeral expenses              :    Rs.20,000/-
           Loss of love and affection       :    Rs.10,000/-

                      Grand Total           :    Rs.23,40,658/-

14. The appeal is allowed and the awarded amount is

enhanced from Rs.9,44,000/- to Rs.23,40,658/-. The Claims

Tribunal has awarded interest @ 9% per annum which is not

disturbed on the original award amount of Rs.9,44,000/-.

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 till realization. The appellants shall have 1/3rd share

each in the enhanced award amount.

15. The enhanced award amount along with up to date interest

be deposited by respondent No.3 with UCO Bank, Delhi High

Court Branch by means of a cheque drawn in the name of UCO

Bank, Delhi High Court Branch A/c Mohit Chopra through Mr.

M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament

Street, New Delhi (Mobile No. 09310356400) within 30 days.

16. Upon the aforesaid amount being deposited, UCO Bank is

directed to release 50% of share (50% of 1/3rd share) of each of