New India Assurance Co. Ltd. vs Maya Devi & Ors.
2012 Latest Caselaw 5041 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of decision: 27th August, 2012
+        MAC. APP. 627/2011

         NEW INDIA ASSURANCE CO. LTD.           ..... Appellant
                      Through: Mr. Kanwal Chaudhary, Adv.

                                            versus

         MAYA DEVI & ORS.                                       ..... Respondents
                      Through                Mr. S.N. Parashar, Adv. for R-1 (a) to
                                             R-1(g).

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                      JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of `11,27,000/- awarded in favour of the Claimants (Respondents No.1(a) to 1(g)) for the death of Veerpal who died in a motor vehicle accident which occurred on the intervening night of 5/6.11.2008.

2. The finding on negligence is not challenged by the Appellant Insurance Company.

3. The following contentions are raised:-

(i) The Claims Tribunal erred in relying on the Salary Certificate Ex.PW-1/1. Since the author/employer/his representative was not produced, the Certificate Ex.PW-1/1 should not have been relied on to compute the loss of dependency.

(ii) The compensation of `70,000/- awarded towards loss of love and affection is on the higher side.

4. Considering the first contention raised by the Appellant, the employer was ordered to be summoned by this Court to prove Salary Certificate Ex.PW-1/1. His statement has been recorded as CW-1. He deposed that deceased Veerpal was working as a cook at his Dhaba (M/s. Amandeep Dhaba) since 2005. He was being paid a salary of `8,000/- per month. The witness admitted that the Dhaba is not registered with the Sales Tax/Vat Department. He admitted that he had no documentary evidence with regard to running of Dhaba. He admitted that he is not maintaining any record, that is, a register for payment of wages. He never obtained any receipt regarding payment of any salary to deceased Veerpal. The witness was cross-examined on behalf of the Appellant. He could not produce any document to show that he was running any Dhaba in the name and style of M/s. Amandeep Dhaba.

5. In the circumstances, the Respondents No.1(a) to 1(g) failed to lead any cogent evidence with regard to deceased Veerpal's employment as a cook at M/s. Amandep Dhaba or his salary @ `8,000/- per month.

6. In the absence of any evidence with regard to the deceased's income, the only option left is to award loss of dependency on minimum wages of an unskilled worker which, at the time of accident were `3683/- per month.

7. There was no evidence with regard to the deceased's bright future prospects. Thus the Claimants are entitled to an increase of 30% towards inflation on the basis of judgment of the Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, relied

on and discussed by this Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011) decided on 16.07.2012.

8. The loss of dependency thus comes to `6,43,493/- (3683/- + 30% x 4/5 x 12 x 14).

9. The Claims Tribunal awarded a sum of `70,000/- towards loss of love and affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only ` 25,000/- (in total to all the claimants) under the head of loss of love and affection. Thus, I would reduce the compensation under this head to ` 25,000/- only.

10. The Claimants are further awarded a sum of `10,000/- each towards loss to estate, loss of consortium and funeral expenses.

11. The overall compensation thus comes to `6,98,493/- which shall carry interest @ 12% per annum as awarded by the Claims Tribunal.

12. The amount of compensation awarded shall be released in favour of the Respondents No.1 (1) to 1(g) in terms of the order passed by the Claims Tribunal.

13. The excess amount of `4,28,507/- along with proportionate interest and the interest, if any, accrued during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

14. The statutory deposit of `25,000/-, if any, shall be refunded to the Appellant.

15. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE AUGUST 27, 2012 vk