Delhi High Court
Mohini Srivastava & Ors vs Radha Kishan & Ors on 18 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing: 24th October, 2011
Date of Decision: 18th November, 2011
+ MAC APP. 251/2011
MOHINI SRIVASTAVA & ORS. ..... Appellants
Through: Mr. Manish Maini, Advocate.
Versus
RADHA KISHAN & ORS. ..... Respondents
Through: Mr. Shadab Khan Advocate for
R-2 & R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G. P. MITTAL, J.
1. The Appellants seek enhancement of the compensation of `
3,32,032/- awarded by the order of the Tribunal dated
11.11.2010. The Appellants grievance is that the deceased
Ashok Kumar Srivastava was working in Paradise Restaurant
Pvt. Ltd. and was getting salary of ` 9,800/- per month. He
worked in the restaurant till 03.02.2008 i.e. the date of the
accident in which Late Ashok Kumar Srivastava lost his life.
The Tribunal relied on Shri K.N. Umesh, H.R. Manager of
Paradise Restaurant Pvt. Ltd. (PW-2) testimony who deposed
that the deceased never worked with them. The Tribunal found
that although the deceased had worked as a Captain in Claridges
Hotel Pvt. Ltd. but that was only upto 01.08.2003. The
deceased took voluntary retirement from the Hotel under the
Claridges Hotel Employees Voluntary Retirement Scheme 2003
w.e.f. 01.08.2003. Since there was no proof of the deceased's
income, the Tribunal took into consideration the minimum
wages of a skilled worker i.e. ` 4057/- per month on the date of
the accident. The Tribunal further found that there were just
two dependents i.e. the widow and the mother of the deceased
Ashok Kumar Srivastava thus, 1/3rd of his assumed income was
taken as his personal living expenses and applying the
multiplier of 09, the Tribunal calculated the dependency at `
2,92,104/-. The Tribunal further awarded a sum of ` 40,000/-
i.e. ` 10,000/- each towards loss of consortium, loss of love and
affection, loss of estate and funeral expenses and worked out the
total compensation to be ` 3,32,032/-.
2. Since the salary certificate (though marked as Ex.PW-1/11) was
not proved; rather, the same was disowned by Shri K.N. Umesh,
H.R. Manager of Paradise Restaurant Pvt. Ltd., the Tribunal
rightly disbelieved the same and took into consideration the
minimum wages of the skilled worker to arrive at the
dependency. PW-2 who also proved the letter Ex.PW-2/A to
the effect that there was no person by the name of Ashok
Kumar Srivastava employed as 'Restaurant Manager' in the
outlet of Paradise Restaurant Pvt. Ltd. The Appellants were
content to give a mere suggestion to PW-2 that Ex.PW-2/A was
a false document but the certificate Ex.PW-1/11 was not even
confronted to this witness. The only conclusion that can be
drawn is that the deceased did not work in the Restaurant at any
point of time.
3. The date of birth of the deceased as per Pan Card Ex.PW-1/2
was proved as 29.10.1952. Thus, the deceased was only 55
years and four months on the date of the accident. As per Sarla
Verma v. Delhi Transport Corporation, 2009 (6) Scale 129, the
Appellants were entitled to multiplier of 11 instead of 09 as
used by the Tribunal in calculating the dependency. Similarly,
the deduction towards the personal expenses would be 1/4th
instead of 1/3rd as the numbers of dependents (Claimants) were
five.
4. It is urged by the learned counsel for the Appellants that
although the future prospects are not to be considered when the
deceased was more than 50 years of age (As per Sarla Verma
(supra)), yet the Court ought to have taken into consideration
the inflation and should have added 50% of the minimum wages
to arrive at the average income of the deceased. Reliance is
placed on a decision of this Court in Kanwar Devi and Ors. v.
Bansal Roadways & Ors., 2008 ACJ 2181, where it was held
that the minimum wages is not akin to future prospects.
Paragraph 6 of the report is extracted hereunder:-
"6. As regards compensating the appellants
towards the increase in the minimum wages, this
court has already taken view in a number of
judgments that in a period of 10 years the
minimum wages almost get more than doubled
and, therefore, the same criteria can also be made
applicable in the present case. The increase in the
minimum wages is not akin to the future prospects
as the said increase takes place so as to meet the
price index and inflation rate and are subject to
periodical revision by the government as per the
provisions of the Minimum Wages Act. The
multiplier of 17 has been applied in the present
case as per the Second Schedule to the Motor
Vehicles Act and, therefore, safely the income of
the deceased in this period can be taken to have
doubled, i.e. ` 6,174 and taking an average of the
same the monthly income of the deceased can be
taken at ` 4,630.50......"
5. It is true that the inflation and price indexation is not the same
as the future prospects, yet the future prospects are considered
where the deceased or injured is comparatively young. The
principles as given in Sarla Verma (supra) while considering
the future prospects would equally apply while considering the
indexation due to inflation in case of minimum wages i.e.
addition of 50% towards inflation and indexation where the
deceased / injured was below 40 years and 'NIL' where the
deceased/injured was more than 50 years Thus, the total
compensation works out as under:-
1. Loss of dependency (4057 - 1014 x 12 x 11)
= 4,01676/-
2. Loss of love and affection = 10,000/-
3. Loss of consortium = 10,000/-
4. Funeral Expenses = 10,000/-
5. Loss to Estate = 10,000/-
---------------
TOTAL = 4,41,676/-
---------------
6. Hence, in my view the Appellants are entitled to an additional
compensation of ` 1,09,644/- along with interest @ 8 % per
annum. Out of the additional amount of ` 1,09,644/-, a sum of
` 80,000/- shall be payable to Appellant No.1 Smt. Mohini
Srivastava and a sum of ` 29,644/- shall be payable to
Appellant No.5 Smt. Laxmi Devi with proportionate interest.
Respondent No.3 is directed to pay the enhanced compensation
within 30 days.
7. As per direction given in Para No.21 of the impugn award, 50%
of the enhanced award amount shall be deposited by Appellant
No.1 and 5 in the FDR for a period of two years and 50% shall
be credited in their saving bank account and the interest on the
same would be transferred in the saving bank account regularly.
8. The appeal is allowed in above terms. No costs.
(G.P. MITTAL)
JUDGE
NOVEMBER 18, 2011
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