Anjana Biloha And Ors. vs R.K. Jain And Anr.
2011 Latest Caselaw 4766 Del

                                  UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+              FAO No.603 /1999
ANJANA BILOHA AND ORS.                  ..... Appellants
               Through: Mr. M. Qayamuddin, Advocate.

                         versus
R.K. JAIN AND ANR.                                   ..... Respondents
                 Through:          Ms. Shantha Devi Raman,
                                   Advocate for the respondent No.2.

%                     Date of Decision : September 26, 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 present appeal has been filed against the judgment and award

of the Motor Accidents Claims Tribunal, Patiala House, New Delhi

dated 03.08.1999 passed in Suit No.184 of 1994 titled as "Anjana

Biloha and Others vs. R.K. Jain & Anr.", whereby a sum of

` 6,16,000/- was awarded to the appellants for the untimely demise of

their bread-earner, Shri Shyam Biloha.

2. Brief facts relevant for the disposal of the present appeal are that

the aforesaid Shri Shyam Biloha died as a result of a motor vehicular

accident which took place on 23.02.1994. A Claim Petition claiming

compensation in the sum of ` 35,00,000/- was filed by the legal

representatives of the deceased, viz. the widow, mother and daughter

of the deceased against the owner-cum-driver and the insurer of the

offending vehicle. The learned Tribunal after concluding that the

accident was caused due to the rash and negligent driving of the

offending vehicle by the respondent No.1, held the appellants entitled

to receive compensation in the sum of ` 6,16,000/- alongwith interest

at the rate of 12% per annum from the date of filing of the petition till

the date of realisation. Aggrieved therefrom, the appellants have filed

the present appeal seeking enhancement of the amount of

compensation awarded by the learned Tribunal.

3. A perusal of the award reveals that the learned Tribunal deemed it

reasonable to assess the income of the deceased at ` 7,000/- per

month or say ` 84,000/- per annum. Deducting one-third (1/3rd)

therefrom towards the personal expenses of the deceased, the Tribunal

assessed the annual loss of dependency of the appellants in the sum of

` 56,000/- per annum. To augment the said multiplicand constituting

the annual loss of dependency of the appellants, the learned Tribunal

applied the multiplier of 11, thereby computing the total loss of

dependency of the appellants in the sum of ` 6,16,000/- and awarded

the said amount as compensation to the appellants.

4. Mr. M. Qayam-ud-din, the learned counsel for the appellants, has

assailed the aforesaid assessment of the quantum of compensation

made by the learned Tribunal on the following grounds:

(a) The learned Tribunal erred in assessing the income of the

deceased on the date of the accident at ` 7,000/- only and

further erred in not augmenting the income of the

deceased for the purpose of computation of compensation

payable to his legal representatives by taking into

account the future prospects of advancement in the career

of the deceased.

(b) The learned Tribunal erred in deducting one-third (1/3rd)

of the income of the deceased towards his personal and

living expenses.

(c) The multiplier adopted by the learned Tribunal deserves

to be enhanced in view of the judgment of Sarla Verma

(supra) wherein it has been held that the multiplier of 13

is the appropriate multiplier where the deceased is in the

age group of 46 years to 50 years.

(d) The learned Tribunal erred in not awarding any amount

under the non-pecuniary heads, namely, loss of

consortium, loss of love and affection and loss of estate

of the deceased and also pecuniary damages towards the

funeral expenses of the deceased.

5. As regards the income of the deceased, it was submitted by the

learned counsel for the appellants in this regard that the deceased was

a practicing Supreme Court advocate and his income was bound to

increase as he gained experience. It was further submitted by the

learned counsel that a legal presumption of annual increments must be

drawn in the case of professionals, especially lawyers whose career

graph rises more substantially in the later years than in the earlier

years. On the basis of the aforesaid, the learned counsel for the

appellants prayed that 30% of the income of the deceased may be

added towards the future prospects of increase in the income of the

deceased, considering that the deceased was admittedly around 47

years at the time of the accident. The learned counsel in this context

relied upon the following part of the judgment of the Supreme Court

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

Corporation and Anr. (2009) 6 SCC 121:-

"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 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 calculations 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."

Reliance was also placed by learned counsel upon the

judgments in the cases of Harbans Lal Vs. Bhim Sain

etc., 1977 CLJ (Civil) 259 and Sukarama Kher & Ors.

Vs. N.K. Nagin Chander & Ors., 2002 (62) DRJ 527 in

support of his aforesaid contentions.

6. Ms. Shantha Devi Raman, the learned counsel for the respondent

No.2 - Insurance Company, on the other hand, sought to support the

findings of the learned Tribunal. As regards the income of the

deceased, Ms. Raman pointed out that the appellants had placed on

record only one assessment order viz., the assessment order pertaining

to assessment year 1991-92, Ex.PW1/6, according to which the

deceased had declared an income of ` 56,500/- for the relevant year

but the same was assessed by the income tax department to be in the

sum of ` 58,480/-. The learned Tribunal, after noting that the income

of an advocate varies from time to time and no particular income

could be accepted as the true index of the earnings of an advocate,

deemed it reasonable to estimate the income of the deceased at

` 7,000/- per month or say ` 84,000/- per annum after considering the

prospects of increase in the income of the deceased spanning the

period of three years from the date of filing of the return till the date

of accident, that is, from assessment year 1991-92 till the assessment

year 1994-95. On the basis of the aforesaid, Ms. Raman, the learned

counsel for the respondent, contended that the learned Tribunal had

given due consideration to the future prospects of increase in the

income of the deceased and no further enhancement in respect thereof

is warranted. It is further the contention of Ms. Raman that the rate of

interest of 12% per annum awarded by the learned Tribunal is on the

higher side.

7. Having heard the counsel for the parties and perused the records of

the Tribunal, I proceed to render my findings on the aspect of the

quantum of compensation payable to the appellants as under.

8. As regards the income of the deceased, there is on record the

testimony of PW1 Smt. Anjana Biloha, widow of the deceased, who

stated that the income of the deceased who was a renowned

practicing Supreme Court lawyer was ` 15,000/- to ` 20,000/- per

month. PW1 has also filed on record certificate of membership of

Supreme Court Bar Association of the deceased as Ex.PW1/11. It may

be mentioned that the income of the deceased as mentioned in the

Claim Petition is stated to be ` 10,000/- to ` 12,000/- per month. The

learned Tribunal, however, relied upon the assessment order of the

deceased placed on record by the widow of the deceased as

Ex.PW1/6, which shows the taxable income of the deceased for the

assessment year 1991-92 in the sum of ` 56,500/-, assessed by the

income tax department as ` 58,480/-.

9. It is apparent from the award that the learned Tribunal while

assessing the loss of dependency has taken the income of the deceased

at ` 7,000/- per month or ` 84,000/- per annum. It may, however, be

noted that the learned Tribunal arrived at the figure of ` 84,000/- per

annum as the income of the deceased at the time of his demise. The

said sum does not provide for the future prospects of increase in the

income of the deceased, which are to be added to the income of the

deceased at the time of his demise. Furthermore, there is substance in

the contention of the learned counsel for the appellant that the income

of a practicing advocate increases as the person gains experience and

attains seniority.

10. In my view, therefore, the interest of justice would be served if,

keeping in mind the age of the deceased, 30% is added to the income

of the deceased towards the future prospects of increase in the income

of the deceased. This is also in consonance with the judgment of the

Supreme Court in the case of Sarla Verma (supra) which has laid

down that an addition of 30% to the actual income of the deceased

should be made where the deceased falls in the age group of 40 years

to 50 years. The income of the deceased, for the purpose of

computing the loss of dependency of the appellants, thus, works out to

` 84,000/- plus 30% of ` 84,000/-, which equals to ` 1,09,200/- per

annum.

11. Dealing next with the second contention of the learned counsel for

the appellants that the deduction of one-third (1/3rd) of the income of

the deceased towards his personal and living expenses is excessive, I

am not in agreement with the said contention. In the case of of Sarla

Verma (supra), the Supreme Court has laid down that where the

deceased is survived by three dependent family members, as a general

rule, one-third (1/3rd) of the income of the deceased may be deducted

towards his personal and living expenses. No special circumstances

have been cited by the learned counsel for the appellants to warrant a

deviation from the aforesaid general rule.

12. The third contention of the learned counsel for the appellants

relates to the appropriate multiplier to be adopted in the instant case.

On this aspect, I am at one with the contention of the learned counsel

for the appellants that the appropriate multiplier for augmenting the

multiplicand constituting the loss of dependency of the appellants is

the multiplier of 13, in the present case, which is also the multiplier

tabulated by the Supreme Court in the judgment of Sarla Verma

(supra) to be the appropriate multiplier for persons/victims falling in

the age group of 46 years to 50 years. Thus calculated, the total loss of

dependency of the appellants works out to ` 1,09,200/- x 2/3 x 13,

that is, ` 9,46,400/- (Rupees nine lakhs forty six thousand and four

hundred only).

13. Lastly, it was contended by the learned counsel for the appellants

that no amount whatsoever has been granted by the learned Tribunal

towards the non-pecuniary damages under the heads of loss of

consortium, loss of love and affection, loss of estate and pecuniary

damages towards funeral expenses of the deceased. Accordingly, a

conventional sum of ` 5,000/- is awarded to the appellants under each

of the aforesaid four heads. The total compensation payable to the

appellants, thus, works out to ` 9,66,400/- (Rupees nine lakhs sixty

six thousand and four hundred only).

14. The award amount is accordingly enhanced by a sum of

` 3,50,400/- (Rupees three lakhs fifty thousand and four hundred

only). Interest on the enhanced amount shall be payable at the rate of

7.5% per annum from the date of filing of the petition till the date of

realization. Respondent No. 2 is directed to deposit the enhanced

compensation alongwith interest thereon within 30 days from today

with the Registrar General of this Court, which shall be disbursed to

the appellants in the same ratio as the original award amount.

15. The appeal stands disposed of accordingly.

16. Records of the Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) September 26, 2011 sk