Anita Kejriwal & Ors. vs Shyam Lal Sharma & Ors.
2011 Latest Caselaw 4649 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 FAO 637/2003


ANITA KEJRIWAL & ORS.                       ..... Appellants
                  Through:            Mr. L.K. Tyagi, Advocate

                  versus


SHYAM LAL SHARMA & ORS.                         ..... Respondents
                Through:              Mr. Joy Basu, Advocate for the
                                      respondent No.3


%                          Date of Decision : September 21, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           JUDGMENT

: REVA KHETRAPAL, J.

1. The appellants in this appeal, who are the legal representatives

of one Deoki Nandan Kejriwal, seek enhancement of the

compensation awarded to them by the Motor Accidents Claims

Tribunal by its judgment and award dated 31.05.2003 on account of

the accidental death of the said Shri Deoki Nandan Kejriwal in a road

accident.

2. The aforesaid road accident in which Shri Deoki Nandan

Kejriwal (hereinafter referred to as "the deceased"), along with his

driver, met with an untimely death took place on 20th April, 1996 on

the road from Delhi to Agra, when the car of the deceased was hit by

the offending truck near Village Ajhai, District Mathura, Uttar

Pradesh. A First Information Report in respect of the accident was

registered with Police Station Vrindavan under Sections 279/338/304-

A IPC against the driver of the offending truck. On a Claim Petition

filed by the legal representatives of the deceased, being Suit

No.941/96, the learned Motor Accidents Claims Tribunal held that

the accident was the outcome of the rash and negligent driving of the

driver of the offending truck. The learned Tribunal then proceeded to

assess the income of the deceased on the basis of his income-tax

return Ex.PW3/2, and after deducting income-tax therefrom at `

1,000/- per month, assessed that the deceased at the time of his

demise was earning ` 9,000/- per month. Significantly, the Tribunal

noted that this position about the income of the deceased had been

ultimately conceded by the counsel for the petitioners, and held that it

would be reasonable to assume that the deceased was spending one-

third (1/3rd) of his aforesaid income upon himself, and thus the annual

loss of dependency of his legal representatives was computed by the

Tribunal to be in the sum of ` 72,000/- (` 9,000/- x 2/3 x 12). Taking

note of the fact that the date of birth of the deceased was 27.12.1950

and at the time of his demise, he was 45 years of age, the Tribunal

applied the multiplier of 13 to the aforesaid multiplicand, and

accordingly assessed the total loss of dependency of the claimants to

be in the sum of ` 9,36,000/-. To this amount, the Tribunal added `

5,000/- towards funeral expenses and ` 10,000/- towards the loss of

love and affection of the deceased. An award was accordingly passed

by the learned Tribunal in the sum of ` 9,51,000/- (inclusive of

interim compensation) alongwith interest thereon at the rate of 9% per

annum from the date of the filing of the petition till the date of

realisation. Aggrieved therefrom, the legal representatives of the

deceased have preferred the present appeal on the ground that the

award has not been passed in accordance with the settled principles of

law with regard to the computation of the loss of dependency of the

legal representatives of the deceased victim.

3. It deserves to be mentioned at the outset that although a

number of grounds are set out in the Memorandum of Appeal, Mr.

L.K. Tyagi, the learned counsel for the appellants, did not dispute the

income of the deceased to be in the sum of ` 10,000/- per month in

view of the fact that the position with regard to his income had been

conceded before the Motor Accidents Claims Tribunal. He also fairly

conceded that there was no material on record to justify any addition

to the income of the deceased on account of his future prospects,

except the statement of the widow of the deceased and, on the other

hand, the income-tax returns proved on record showed a downward

trend in the income of the deceased. However, Mr. Tyagi assailed the

award and challenged the same on the following grounds:-

(i) The learned Tribunal did not take into account the fact

that the income-tax return of the deceased for the

Assessment Year 1997-98 Exhibit PW3/2 itself showed

that the deceased was drawing a sum of ` 5,000/- per

month towards house rent allowance. The non-addition

of the said sum of ` 60,000/- per annum to the annual

income of the deceased had caused grave prejudice to the

appellants/claimants.

(ii) The learned Tribunal deducted one-third (1/3rd) of the

income of the deceased towards his personal expenses,

and altogether lost sight of the fact that with five

dependent family members, being the widow of the

deceased, his son, daughter and parents, a deduction of

not more than one-fourth (1/4th) ought to have been made

from the income of the deceased.

(iii) The learned Tribunal ought to have applied the

multiplier of 14 instead of the multiplier of 13 to the

annual loss of dependency of the legal representatives of

the deceased.

(iv) The amount of non-pecuniary damages awarded by the

learned Tribunal towards the funeral expenses of the

deceased deserve to be enhanced in view of the fact that

the body of the deceased was transported from

Vrindavan to Delhi and it was categorically deposed by

the appellant no.1, who appeared in the witness box as

PW3, that a sum of ` 50,000/- was spent in the

transportation of the body of the deceased to Delhi.

(v) The amount awarded by the learned Tribunal towards

loss of love and affection was also required to be

enhanced, and non-pecuniary damages under the heads

of loss of consortium and loss of estate of the deceased

to be added to the pecuniary damages.

4. Mr. Joy Basu, the learned counsel for the respondent No.3-M/s.

Oriental Insurance Co. Ltd., though sought to support the award

passed by the Claims Tribunal did not deny the fact, as indeed he

could not have, that a deduction of not more than one-fourth (1/4th) of

the income of the deceased towards his personal expenses would be

warranted in the instant case, and that the appropriate multiplier

would be the multiplier of 14 as laid down by the Supreme Court in

the case of Smt. Sarla Verma and Ors. vs. Delhi Transport

Corporation and Anr., (2009) 6 SCC 121, instead of the multiplier of

13 which was adopted by the learned Tribunal.

5. As regards the addition of the house rent allowance to the

income of the deceased, the Supreme Court in the case of Raghuvir

Singh Matolya & Ors. vs. Hari Singh Malviya & Ors., (2009)15

SCC 363, has made the following pertinent observations, (page 365)

"6. ................................. House rent allowance is paid for the benefit of the family members and not for the employee alone. What would constitute an income, albeit in a different fact situation, came up for consideration before this Court in National Insurance Co. Ltd. v.

Indira Srivastava and Ors., (2008) 2 SCC 763, wherein it was held (SCC page 772, paras 19-

21).

"19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said

amount of income, the statutory amount of tax payable thereupon must be deducted.

20. The term „income‟ in P.

Ramanatha Aiyar's Advanced Law Lexicon (3rd Edn.) has been defined as under:-

'(iii) „The value of any benefit or perquisite whether convertible into money or not, obtained from a company either by a director or a person who has substantial interest in the company, and any sum paid by such company in respect of any obligation, which but for such payment would have been payable by the director or other person aforesaid, occurring or arising to a person within the State from any profession, trade or calling other than agriculture.‟ It has also been stated:

"„Income' signifies „what comes in‟ (per Selborne, C., Jones v. Ogle 1861- 73All ER Reporter 918). `It is as large a word as can be used' to denote a person's receipts (per Jessel, M.R., Huggins Ex P., Re 51 LJ Ch 935). Income is not confined to receipts from business only and means periodical receipts from one's work, lands, investments, etc. Secy. to the Board of Revenue, Income Tax v. Al. Ar. Rm. Arunachalam Chettiar & Brothers. AIR 1927 Mad. 427. Ref. Vulcun Insurance Co. Ltd. v. Corpn. of Madras, AIR 1930 Mad. 626(2).

21. If the dictionary meaning of the word „income‟ is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute."

To the same effect is the decision of this Court in Oriental Insurance Co. Ltd. v. Ram Prasad Varma and Ors., 2009 (1) SCALE 598.

7. We, therefore, are of the opinion that `Dearness Allowance' and „House Rent Allowance‟ payable to the deceased should have been included for determining the income of the deceased and consequently the amount of compensation."

6. In view of the aforesaid law laid down by the Supreme Court in

the case of Raghuvir Singh Matolya (supra), the house rent

allowance drawn by the deceased as reflected in his income-tax

return, that is, ` 5,000/- per month must be added to his actual salary

less tax, that is, ` 9,000/- per month. Thus, the deceased must be

assumed to be earning a sum of ` 9,000/- plus ` 5,000/-, that is,

` 14,000/- per month after the deduction of income-tax, that is to say,

` 1,68,000/- per annum.

7. As regards deduction towards the personal expenses of the

deceased, I am inclined to agree with the contention of the learned

counsel for the appellants that in view of the fact that the deceased

had five dependent family members, a deduction of not more than

one-fourth (1/4th) would be warranted towards the personal expenses

of the deceased from his annual income. This would also be in

consonance with the law laid down by the Supreme Court in the case

of Sarla Verma (supra), wherein it has been held that where the

number of dependent family members is between four to six, the

deduction should be one-fourth (1/4th) towards the personal expenses

of the deceased. Thus calculated, the annual loss of dependency of

the appellants comes to ` 1,26,000/- per annum.

8. The learned Tribunal has applied the multiplier of 13, but in

view of the fact that the Supreme Court in the case of Sarla Verma

(supra) has approved of and tabulated the multiplier of 14 for the age

group of victims between 41 to 45 years of age, it is proposed to

apply the said multiplier for the purpose of augmenting the

multiplicand constituting the annual loss of dependency of the

appellants. In this manner, the total loss of dependency of the

appellants comes to ` 1,26,000/- x 14 = ` 17,64,000/- (Rupees

Seventeen Lac Sixty Four Thousand Only)

9. It is also proposed to enhance the amount awarded towards

funeral expenses awarded by the learned Tribunal from ` 5,000/- to `

20,000/- keeping in view the fact that the body of the deceased was

transported from Vrindavan to Delhi. The grant of the sum of `

10,000/- to the appellants towards the loss of love and affection of the

deceased is also enhanced to ` 15,000/- and in addition a sum of `

10,000/- is awarded to the appellant No.1 towards the loss of

consortium of the deceased and a further sum of ` 10,000/- is

awarded to the appellants for the loss of estate of the deceased, that is,

in all a sum of ` 18,19,000/- with interest thereon at the rate of 9% as

awarded by the learned Tribunal till the date of realisation.

10. In the result, the award amount is enhanced by the sum of `

8,68,000/-. The amount of enhanced compensation shall enure to the

benefit of the appellant No.1. The Insurance Company is directed to

satisfy the award as modified herein above within 30 days from the

date of this order by depositing the aforesaid amount with the

Registrar General of this Court

11. The appeal is allowed to the aforesaid extent.

12. There shall be no order as to costs. Records of the Tribunal be

sent back to the concerned Tribunal.

REVA KHETRAPAL (JUDGE) September 21, 2011 km