Delhi High Court
Rajesh vs Shayam Dubey & Ors. on 16 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th August, 2012
+ MAC.APP. 540/2008
RAJESH ..... Appellant
Through: Mr.D.K.Sharma and Mr.S.K.Vashistha,
Advocates.
versus
SHAYAM DUBEY & ORS. ..... Respondents
Through: Mr.R.B.Shami, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of `4,90,063 awarded for the death of a
housewife Smt. Sonu aged 22 years and death of 7 month old foetus in an
accident which occurred on 10.11.2005.
2. Learned counsel for the Respondent/Insurance Company opposes the Appeal
for grant of compensation for death of a foetus relying on a judgment of
Bombay High Court in Margappa Shethappa Vadar v. Proctor and Gamble
India, 2008 ACJ 2802. As far as the death of Sonu (a housewife) is
concerned he submits that the case is covered by the judgment of this Court
in Royal Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh &
Ors., MAC.APP. 590/2011, decided on 30th January, 2012. In Master
Manmeet this Court noticed the following judgments:-
(i) General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
(ii) National Insurance Company Limited v. Deepika & Ors., 2010 (4)
ACJ 2221,
(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1,
(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,
(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR
1962 SC 1,
(vi) A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,
(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and
(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),
and laid down the principle for determination of loss of dependency on
account of gratuitous services rendered by a housewife. Para 34 of the
judgment in Master Manmeet Singh (supra) is extracted hereunder:-
"34. To sum up, the loss of dependency on account of gratuitous
services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in (i),
(ii) and (iii) where the age of the homemaker is upto 40 years;
the increase will be restricted to 15% where her age is above
40 years but less than 50 years; there will not be any addition
in the assumed salary where the age is more than 50 years.
(v) When the deceased home maker is above 55 years but less than
60 years; there will be deduction of 25%; and when the
deceased home maker is above 60 years there will be deduction
of 50% in the assumed income as the services rendered
decrease substantially. Normally, the value of gratuitous
services rendered will be NIL (unless there is evidence to the
contrary) when the home maker is above 65 years.
(vi) If a housewife dies issueless, the contribution towards the
gratuitous services is much less, as there are greater chances
of the husband's re-marriage. In such cases, the loss of
dependency shall be 50% of the income as per the qualification
stated in (i), (ii) and (iii) above and addition and deduction
thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and
living expenses.
(viii) As an attempt has been made to compensate the loss of
dependency, only a notional sum which may be upto ` 25,000/-
(on present scale of the money value) towards loss of love and
affection and ` 10,000/- towards loss of consortium, if the
husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no
amount should be awarded towards loss of estate."
3. There is no evidence with regard to the educational qualification of deceased
Sonu. She was aged 22 years at the time of accident. The Appellant would
be entitled to compensation on the basis of minimum wages of a non-
matriculate on the date of the accident i.e. 10.11.2005. Applying Master
Manmeet (supra), the loss of dependency comes to ` 4,53,330/-
(3358+25%x12x18x1/2).
4. The payment of compensation for death of a foetus is covered by the
judgment of a Learned Single Judge of this Court in Prakash & Ors. v. Arun
Kumar Saini & Anr. 2010 ACJ 2184. The Learned Single Judge relied on
judgments of various High Courts including (i) Divisional Controller, B.T.S.
Division Karnataka State Road Trans. Corpn. v. Vidya Shindhe, 2005 ACJ
69 (Karnataka )
(ii) Bhawaribai v. New India Assurance Co. Ltd. 2006 ACJ 2085
(Karnataka)
(iii) Sharddha v. Badresh, 2006 ACJ 2067 (MP)
(iv) Branch Office, New India Assurance Co. Ltd. v. Krishnaveni,
MANU/TN/2882/2009 (Madras)
(v) Oriental Insurance Co. Ltd. v. Santhilal Patal, 2007 (4) ACD 835 (AP)
5. The judgment of Bombay High Court in Margappa (supra) relied upon by
the learned counsel for the Respondent/Insurance Company was discussed
and distinguished in Parkash (supra). The Learned Single Judge discussed
the provision of Hindu law and the concept of right of child in womb and
awarded a compensation of `2,50,000/- for the death of a 7 month old
foetus. I am in respectful agreement with Arun Kumar Saini (supra) and
award a compensation of ` 2,50,000/- for the death of the foetus.
6. In addition the Appellants would be entitled to a sum of `25,000/- towards
loss of love and affection, `10,000/- each towards funeral expenses and loss
of consortium.
7. The overall compensation thus comes to `7,48,330/-. Thus there is
enhancement of `2,58,267/- which shall carry interest @ 7.5% per annum
from the date of filing of the petition till the date of payment.
8. 75% of the enhanced compensation shall be held in Fixed Deposit for a
period of 2,4 and 6 years in equal proportion and rest shall be released to the
Appellant on deposit.
9. The Respondent/Insurance Company is directed to deposit the enhanced
compensation in UCO Bank, Delhi High Court Branch within six weeks.
10. The Appeal is allowed in above terms.
11. Pending applications also stand disposed of.
G.P. MITTAL, J
AUGUST 16, 2012
mr
