Delhi High Court
Sarabjeet Kaur & Ors. vs Om Prakash Chandela & Anr. on 29 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th November, 2011
Pronounced on: 29th November, 2011
+ MAC APP.121/2011
SARABJEET KAUR & ORS. .... Appellants
Through: Mr. Navneet Goyal, Advocate.
versus
OM PRAKASH CHANDELA & ANR. ..... Respondents
Through: Mr. Abhishek Kumar Advocate
for R-2.
+ MAC APP.173/2011
NEW INDIA ASSURANCE COMPANY LTD..... Appellants
Through: Mr. Abhishek Kumar Advocate
versus
SARABJEET KAUR & ORS. ..... Respondents
Through: Mr. Navneet Goyal, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two cross appeals arise out of an award dated 30.09.2010
passed by the Motor Accident Claims Tribunal (the Tribunal)
whereby the compensation of ` 19,16,976/- along with interest
@ 7.5% per annum was awarded by the Tribunal in respect of
death of Kawaljeet Singh who was aged about 46 years on the
date of the accident on 29.08.2007.
2. In MAC APP. No.121/2011 the Appellants' grievance is that
the deceased's actual income was not taken into consideration
and compensation awarded towards the conventional head of
loss of love and affection of ` 10,000/- was on the lower side. It
was averred that the future prospects were given to the extent of
30% only which was also on the lower side considering that the
deceased was employed as an Account Superintendent in M/s.
National Aviation Company of India Limited.
3. In the cross appeal (MAC APP.173/2011) preferred by the
Insurance Company it is averred that neither any of the witness
nor the IO was examined and mere filing of the record of the
criminal case was not sufficient to prove rashness and
negligence on the part of the driver Om Prakash Chandela
(Respondent No.4) and thus, there is no liability on the part of
the Respondent Om Prakash Chandela (owner) and on the
Appellant New India Insurance Company Limited, the insurer
of the vehicle.
4. Apart from the fact that along with the Accident Information
Report, the attested copies of the FIR No.342/2007, Police
Station Prasad Nagar, site plan showing the manner in which
the accident took place, mechanical inspection report showing
scratch marks on the front mudguard, MLC and post mortem
report which prima facie showed negligence on the part of the
Respondent Om Prakash Chandela, it was averred in Para 27 of
the Petition that on 29.08.2007 at about 7:25 PM while
Kawaljeet Singh (the deceased) was crossing the road at Dhobi
Ghat WEA Karol Bagh, Delhi a motor cycle No.DL-6SZ-0576
being driven by the Respondent Om Prakash Chandela in a rash
and negligent manner hit the deceased with great force. As a
result of this, he fell down on the road, suffered grievous
injuries. He was removed to RML hospital where he
succumbed to the injuries on the same day at 11:10 PM. These
averments were not denied in the written statement/reply filed
by the Respondent Om Prakash Chandela (the driver of the
offending vehicle) and by the Insurance Company either
specifically or by necessary implication. Although, in a petition
under Section 166 of the Motor Vehicles Act (M.V. Act) it is
expected of the Claimants to prove rashness or negligence on
the part of the driver of the vehicle to claim damages, yet, in
view of the documents placed on record as stated earlier and the
implied admission by not controverting the facts of negligence
as stated in the petition, specifically, the negligence on the part
of the driver of the offending vehicle was established.
5. Turning to the amount of compensation, the Tribunal fell in a
grave error in taking the net salary of the deceased as ` 13,957/-
per month. As per Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr., 2009 (6) SCC 121, the actual income of
the deceased less income tax is the starting point of calculation
of compensation. Though the certificate Ex.PW-1/11 showing
the deceased's salary to be ` 4,05,124/- was vague, yet the
salary slip for the month of August clearly showed that the
deceased had a gross salary of ` 30,116/-. Applying Sarla
Verma (supra), the compensation works out as under:-
(i) Total gross income of the deceased = ` 3,61,392/-/.
(ii) Income tax in the Assessment year 2008-09 = 57,417/-
(iii) Net income = 3,03,975/-.
(iv) Future prospects 30% (the age of the deceased being 46
years) = 91,192.50/-
(v) Deduction one-third (as the dependants were three)
= 131722.50/-
(vi) Multiplier applied = 13
(vii) The total dependency = 34,24,785/-
6. In my view, an award of ` 10,000/- towards loss of love and
affection was on the lower side. I enhance the same to `
25,000/-. The compensation of ` 10,000/- towards loss of
consortium, ` 5,000/- towards loss of estate, ` 5,000/- for
funeral expenses is in consonance with Sarla Verma (supra).
7. Thus, the total compensation comes to ` 34,69,785/-. The
enhanced compensation of ` 15,52,809/- shall carry interest @
7.5% per annum from the date of filing of the petition till
realization of the amount.
8. Out of the enhanced compensation a sum of ` 3,00,000/- along
with the proportionate interest shall be held in the FDR in the
name of the Appellant's minor son Gurdeep Singh till he attains
the age of majority. He shall, however, be paid monthly interest
which shall be utilized for his maintenance by Appellant No.1
Sarabjeet Kaur wife of the deceased. The amount payable to
Appellant No.1 Sarabjeet Kaur shall be held in a fixed deposit
for a period of three years.
9. 50% of the amount payable to Narender Kaur Appellant No.3
shall be held in fixed deposit for a period of three years and rest
50% for five years.
10. All the Appellants shall be entitled to interest on monthly basis.
11. Appeals are disposed of in the above terms. No costs.
12. All pending applications stands disposed of.
13. Copy of the order be given to the Appellants and UCO Bank,
Delhi High Court Branch. Copy of the order may be sent to the
Trial Court for information.
(G.P. MITTAL)
JUDGE
NOVEMBER 29, 2011
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