Mala Dutta Gupta And Anr. vs National Insurance Co. Ltd. And ...
2011 Latest Caselaw 4827 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    MAC. APP. 826/2011

MALA DUTTA GUPTA AND ANR.              ..... Appellants
                   Through: Mr. Dev Dutt, Advocate
            versus
NATIONAL INSURANCE CO. LTD. AND ORS. ..... Respondents
                 Through:   Mr .Manoj Ranjan Sinha,
                           Advocate for the Insurance
                           Company

%                        Date of Decision :   September 28, 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?

                         J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award of the

Motor Accidents Claims Tribunal dated 31.12.2000, whereby a sum

of ` 13,89,000/- (Rupees Thirteen Lac Eighty Nine Thousand Only)

was awarded to the appellants alongwith interest @ 12% per annum

from the date of the petition till realisation (inclusive of the interim

award).

2. Concisely, the facts are that the appellants are the widow and

minor son of the deceased Shri Onkar Dutta Gupta, who met with a

fatal accident on 17.07.1996, near the Chittranjan Park Chowk, with a

TSR bearing No.DL 1RB 0048. The deceased was aged 36 years and

was working as a Manager Executive (Selections) in M/s. Quest

Consultants and Engineering Pvt. Ltd. on a salary of ` 14,700/- per

month. A Claim Petition was filed by the appellants claiming

compensation in the sum of ` 40 lacs for his untimely demise against

the respondent No.3-driver, the respondent No.2-owner and the

respondent No.1-M/s. National Insurance Co. Ltd., the insurer of the

offending vehicle. The Motor Accidents Claims Tribunal after

conducting an enquiry held that the accident was the outcome of the

rash and negligent driving of the aforesaid TSR by the respondent

No.3 and proceeded to compute the compensation payable to the legal

representatives of the deceased by assessing the income of the

deceased to be in the sum of ` 1,37,400/- per annum on the basis of

his salary certificate (Ex.PW4/1) and his income-tax return for the

financial year 1995-96 (Ex.PW4/2). The Tribunal adopted the

formula laid down by the Supreme Court in the case of Smt. Sarla

Dixit and Anr. vs. Balwant Yadav and Ors., AIR 1996 SC 1274 to

assess the future emoluments of the deceased and then deducting one-

third (1/3rd) therefrom computed the annual loss of dependency of the

appellants at ` 1,37,400/-. To the aforesaid multiplicand, the

Tribunal applied a multiplier of 10 and held that, calculated in this

manner, the capitalized sum came to ` 13,74,000/-, to which it added

a sum of ` 15,000/- towards the loss of consortium and funeral

expenses of the deceased. The learned Tribunal thus passed an award

in the sum of ` 13,89,000/- with interest at the rate of 12% per annum

from the date of the petition till realisation.

3. Aggrieved by the quantum of the award, the present appeal has

been preferred by the legal representatives of the deceased claiming

enhancement in the compensation to the extent of ` 40 lacs.

Although a number of grounds of appeal are set out in the

Memorandum of Appeal, Mr. Dev Dutt, the learned counsel for the

appellants in the course of hearing raised a two-fold contention. The

first limb of his argument is that the learned Tribunal erroneously

applied a multiplier of 10 to augment the multiplicand constituting the

average annual loss of dependency of the appellants. He contended

that keeping in view the fact that the deceased was 36 years of age on

the date of the accident and fell in the age group of victims between

36 years to 40 years, and the multiplier approved of by the Supreme

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

Corporation and Anr., (2009) 6 SCC 121 for the said age group is

the multiplier of 15, the Tribunal should have applied the multiplier

of 15. The second limb of Mr. Dutt's argument is that no amount

whatsoever was awarded by the learned Tribunal towards non-

pecuniary damages under the heads of loss of love and affection of

the deceased and loss of estate of the deceased.

4. Mr. Manoj Ranjan Sinha, on the other hand, sought to support

the findings of the learned Tribunal and urged that the award was a

just and fair one. He, however, contended that the assessment of the

income of the deceased by the learned Tribunal was flawed, inasmuch

as the learned Tribunal took into account the gross salary of the

deceased without deducting income-tax therefrom. In this context,

Mr. Sinha drew the attention of this Court to the evidence of PW4

Deepak Singh, an official of the Company in which the deceased was

working as a Manager Executive (Selections), namely, M/s. Quest

Consultants and Engineering Pvt. Ltd. In the course of his testimony,

PW4 Deepak Singh with regard to the tax liability of the deceased

stated that his tax liability was ` 8,860/- per annum, but after rebate

and on account of Provident Fund, Life Insurance Policy and NSC,

the net tax payable by him was ` 4,840/- per annum and the same was

deposited by him with the Income-Tax Department as per Form 16,

photocopy whereof was exhibited as Ex.PW4/2. Mr. Sinha contended

that keeping in view the fact that in the case of Sarla Verma (supra)

relied upon by the counsel for the appellants as well as in a catena of

decisions of the Supreme Court, it had been held that the tax payable

by the deceased must be deducted from his annual income for the

purpose of computing the loss of dependency of his legal

representatives, the learned Tribunal had erred in not deducting the

tax from the annual income of the deceased.

5. There is no manner of doubt that it is well established that

income for the purpose of assessment of compensation payable to

victims of motor accidents is the actual income less income-tax

payable thereon. Accordingly, it is proposed to deduct the income-

tax payable by the deceased from his annual income. Thus

calculated, the annual income of the deceased for the financial year

1995-96 comes to ` 1,37,400/- minus ` 4,840/- = ` 1,32,560/-. His

average annual income after addition of 50% towards his anticipated

future earnings thus works out to ` 1,32,560/- (actual earnings) plus `

66,280/- (50% increase) = ` 1,98,840/- per annum. Deducting one-

third (1/3rd) therefrom, the average annual loss of dependency of the

appellants comes to ` 1,32,560/-. Adopting the multiplier of 15 to

augment the aforesaid amount in consonance with the judgment of the

Supreme Court in the case of Sarla Verma (supra), the total loss of

dependency of the appellants comes to ` 1,32,560/- x 15 = `

19,88,400/- (Rupees Nineteen Lac Eighty Eight Thousand and Four

Hundred Only).

6. The learned Tribunal in addition to the pecuniary damages has

awarded a sum of ` 15,000/- towards loss of consortium and funeral

expenses, which award is maintained as it is. Apart from this amount,

however, the appellants are held entitled to receive non-pecuniary

damages under the heads of loss of love and affection of the deceased

and loss of estate of the deceased in the sum of ` 10,000/- each.

Thus, in all, a sum of ` 35,000/- is awarded towards the funeral

expenses of the deceased and non-pecuniary damages. Thus, the total

compensation payable to the appellants comes to ` 20,23,400/-

(Rupees Twenty Lac Twenty Three Thousand and Four Hundred

Only).

7. In view of the aforesaid, the impugned award stands modified

and enhanced by a sum of ` 6,34,400/- (that is, ` 20,23,400/- minus `

13,89,000/-), which may be rounded off to ` 6,34,000/- (Rupees Six

Lac Thirty Four Thousand Only). Interest on the enhanced amount

shall be payable at the rate of 7.5% per annum from the date of the

filing of the petition till the date of realisation. In view of the fact that

a sum of ` 12 Lacs has already been deposited by the Insurance

Company in terms of this Court's order dated 10.08.2001, the

Insurance Company shall be liable to pay the balance sum of `

1,89,000/- with interest thereon as awarded by the learned Tribunal at

the rate of 12% per annum from the date of the institution of the

petition till the date of realisation. The respondent No.1-Insurance

Company is directed to deposit the enhanced amount as also the

balance sum of ` 1,89,000/-along with the interest thereon as set out

hereinabove with the Registrar General of this Court within 30 days

from the date of passing of this order, which shall be released to the

appellants.

8. The appeal is allowed in the above terms. Parties shall bear

their own costs.

9. Records of the Claims Tribunal shall be sent back to the

concerned Tribunal forthwith.

REVA KHETRAPAL (JUDGE) September 28, 2011/km