Delhi High Court
Anita Devi & Others vs United India Assurance Company ... on 15 July, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15.07.2011
+ MAC APPEAL No. 653/2010
ANITA DEVI & OTHERS
...........Appellants
Through: Mr. Hameed S. Shaikh,
Advocate.
Versus
UNITED INDIA ASSURANCE COMPANY LTD. & OTHERS
..........Respondents
Through: Mr. K.L. Nandwani, Advocate
for respondent No. 1.
AND
MAC APPEAL No. 654/2010
REKHA YADAV & OTHERS
...........Appellants
Through: Mr. Hameed S. Shaikh,
Advocate.
Versus
UNITED INDIA ASSURANCE COMPANY LTD. & OTHERS
..........Respondents
Through: Mr. K.L. Nandwani, Advocate
for respondent No. 1.
AND
MAC APPEAL No. 655/2010
NIRMALA DEVI & OTHERS
...........Appellants
Through: Mr. Hameed S. Shaikh,
Advocate.
Versus
MAC APPEAL No.653-55/2010 Page 1 of 9
UNITED INDIA ASSURANCE COMPANY LTD. & OTHERS
..........Respondents
Through: Mr. K.L. Nandwani, Advocate
for respondent No. 1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 These are three appeals preferred by the legal heirs of
deceased Pawan Kumar, Jitender Singh & Dev Karan. Their claim
petition had been decided by a common judgment and vide Award
dated 18.05.2010 compensation had been awarded in favour of
the claimants. There is no dispute on the quantum granted under
the head of non-pecuniary damages. The only dispute is with
regard to the amounts awarded under the head of loss of
dependency.
2 All the three deceased after their retirement from the Indian
Navy had been employed with M/s DEC Property Management
Pvt. Ltd. on different posts. On 08.11.2008 they were travelling
together in a Maruti Wagon (R) when their car collided with a
Tata truck which was being driven in a fast and negligent manner;
as a result of this collision the motor cycle in front of the offending
vehicle being driven by one Sunny Singh was hit; Sunny Singh
sustained injuries; Pawan Kumar, Jitender Singh & Dev Karan all
died on the spot.
3 Four claim petitions had been preferred under Section 166
of the Motor Vehicle Act (hereinafter referred to as the 'MV Act');
three by legal heirs/claimants of the deceased and the fourth
claim petition had been preferred by the injured Sunny Singh
himself.
4 Fact as further emanating from the record are that Pawan
Kumar was working as a Engineer; he was 33 years of age on the
date of the accident; Jitender Singh was working as a Sr.
Engineer; he was 35 years of age on the date of the accident; Dev
Karan was working as a Supervisor; he was 49 years of age on the
date of the accident;. Because of the untimely death of the
aforenoted three persons, future prospects which had not been
considered by the Tribunal have been claimed in these appeals.
The claimants of all the three deceased persons have sought an
enhancement of their compensation.
5 Record shows that oral and documentary evidence had been
led. To decide this controversy i.e. as to whether the legal heirs of
the claimants were entitled to future prospects, testimony of PW-5
is relevant. PW-5 was P.S. Bhandari, Manager of M/s DEC
Property Management Pvt. Ltd.; appointment letter qua Dev
Karan had been proved as Ex. PW-5/D showing that Dev Karan
was appointed with the company at a monthly salary of
Rs.16,041/-; the breakup of his salary had also been given showing
that a gross earning of Rs.6,500/- towards basic pay besides
dearness allowance; he was entitled to HRA, medical allowance
and City Compensatory Allowance. Appointment letter qua
Jitender Singh had been proved as Ex. PW-5/B showing that
Jitender Singh was appointed with the company at a monthly
salary of Rs.36,875/-; the breakup of his salary had also been
given showing that a gross earning of Rs.10,500/- towards basic
pay besides dearness allowance; he was entitled to HRA, medical
allowance and City Compensatory Allowance. Appointment letter
qua Pawan Kumar had been proved as Ex.PW-5/C showing that
Pawan Kumar was appointed with the company at a monthly
salary of Rs.26,666/-; the breakup of his salary had also been
given showing that a gross earning of Rs.8,000/- towards basic
pay besides dearness allowance; he was entitled to HRA, medical
allowance and City Compensatory Allowance. The Tribunal had
not taken the allowances into consideration but the annual salary
after deducting 10% as income tax had been computed as the
income. Admittedly future prospects had not been considered. The
pension being received by the deceased was also taken into
consideration; 50% of the same was deducted; keeping in view the
fact that the remaining 50% would have probably been spent by
the deceased upon himself; this calculation up to this point suffers
from no infirmity.
6 However future prospects should have been taken into
account and the Tribunal has erred in not taking this into account.
In the judgment reported in AIR 2009 SC 3104 Sarla Verma &
Others Vs. Delhi Transport Corporation, the Apex Court has held
that the future prospects should not be considered of deceased
who are above 50 years of age. This legislation is a socially
benevolent legislation engrafted with an intent to allow
compensation to be paid to the claimants of a deceased as early as
possible; it must be a 'just compensation'. Admittedly in all the
three cases i.e. Pawan Kumar, Jitender Singh and Dev Karan they
were all aged below 50 years. Pawan Kumar was 33 years of age;
Jitender Singh was 35 years of age; Dev Karan was 49 years of
age on the date of the accident.
7 The Apex Court in Sarla Verma (Supra) had also noted that
the future prospects may not be considered if the deceased does
not have a permanent job. Learned counsel for the respondent has
also placed reliance upon the judgment of the Apex Court
reported in AIR 2006 SC 1255 Bijoy Kumar Dugar VS. Bidyadhar
Dutta & Others to support his submission that to establish the
claim of future prospects, there must be cogent evidence.
8 In this context, the testimony of PW-5 as noted supra is
relevant. The appointment letters of each of three persons are on
record; admittedly all the three deceased persons were
mechanical engineers; they were highly qualified; being
specialized in a special professional field; admittedly all of them
had served in the Indian Navy prior to their having been
appointed in the service of M/s DEC Property Management Pvt.
Ltd. Clause 4 of the appointment letter is also relevant. It states
that their period of probation will be for a period of one year
which may be extended at the discretion of the employer or this
may be dispensed with even earlier or thereafter till confirmation.
Their appointment letters are dated 25.08.2008. The accident had
occurred on 08.11.2008 i.e. within six months of the date of their
appointment. It is nobody's case that the deceased had any
adverse report against them. Bifurcation of salary of each of the
deceased had also been produced in the evidence of PW-5; there
also a promotion policy of the company. The promotion policy in
fact states that a permanent employee is one who is employed
against a permanent post and may also include a probationer;
salary will be increased annually in April ever year; the salary
chart of the deceased placed on record also shows that M/s DEC
Property Management Pvt. Ltd. was a large company having
several employees on its work list.
9 From this record, it is apparent that the deceased were all
special qualified professional persons who were working in the
field of their specialized capacity; it is also a known fact that these
persons after having served in the Indian Navy had joined the
service of M/s DEC Property Management Pvt. Ltd. The evidence
led before the Tribunal establishes that their jobs were of a
permanent nature and they should have also been considered for
future prospects; the promotion policy of the company also
substantiates enhancement. The rise in the price index and
inflation for which notice has been taken by our courts time and
again cannot be lost sight of; this has illegally been ignored by the
Tribunal. There was ample evidence to support this submission of
the appellants. The judgment of Bijoy Kumar Dugar (Supra) is
inapplicable in this factual scenario.
10 The appellants are entitled to future prospects which would
be double the amount of salary (in the case of Anita Devi and
Rekha Yadav and 30% in the case of Nirmala Devi) after deduction
of tax. This is in conformity with the ratio of the catena of
judgments reported in 2008 ACJ 2182 (Delhi) Kanwar Devi Vs.
Bansal Roadways, 2007 ACJ 2165 (Delhi) Lekhraj Vs. Suram Singh
and 2009 ACJ 1921 (Delhi) National Insurance Co. Ltd. Vs. Renu
Devi.
11 The modified Award under the head of loss of dependency
will be read as following:-
(I) In the case of Anita wife of deceased Pawan
Salary of the deceased `23,500/-
Adding future prospects `11,750/-
`35,250/-
Adding family pension `2,057/-
`37,307/-
Deducting 10% tax liability `3730/-
`33,577/-
Deducting 1/4th personal expenses `8,394/-
`25,183/-X12X16 =
Total loss of dependency ` 48,35,136/-
(II) In the case of Rekha Yadav wife of Jitender
Salary of the deceased ` 32,500/-
Adding future prospects `16,250/-
` 48,750/-
Adding family pension `1,363/-
`50,113/-
Deducting 10% tax liability `5,011/-
` 45,102/-
Deducting 1/4th personal expenses ` 11,275/-
`33,827/-X12X16 =
Total loss of dependency `64,94,784/-
(iii) In the case of Nirmala Devi wife of deceased Dev Karan
Salary of the deceased `14,000/-
Adding future prospects `4,200/-
` 18,200/-
Adding family pension `1,715/-
`19,915/-
Deducting 10% tax liability `1,991/-
`17,924/-
Deducting 1/4th personal expenses `13,443/-
` 13,443/-X12X13 =
Total loss of dependency `20,97,108/-
12 The non-pecuniary damages remained unmodified. The
interest amount also calls for no interference.
13 Appeals are disposed of in the above terms.
INDERMEET KAUR, J.
JULY 15, 2011
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