Suresh & Ors vs Amit Kumar & Ors
2012 Latest Caselaw 5139 Del

$~24
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision:30th August, 2012
+        MAC. APP. No.497/2011

         SURESH & ORS                                ..... Appellant
                                 Through:   Mr.Navneet Goyal and Ms.Suman
                                            N.Rawat, Advocates.

                        versus

         AMIT KUMAR & ORS            ..... Respondents
                      Through: Mr.R.C.Mahajan, 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 compensation of `11,52,564/- awarded for the death of Balraj Singh who died in an accident which occurred on 12.01.2008. In the absence of any Appeal by the driver, owner and the Insurance Company, the defence of negligence had attained finality.

2. The deceased was aged about 45 years at the time of the accident as his birth certificate shows his date of birth as 08.07.1961. The Claims Tribunal accepted his age as 54 years at the time of accident and erred in making deduction of `630/- and directed the Insurance Company to make compulsory deduction.

3. The Respondent Insurance Company urges that the age of 54 years was accepted on the basis of the record with the deceased's employer and thus there is no infirmity in the judgment of the Trial Court.

4. The Appellants have placed on record a school leaving certificate Ex.PW-

3/1 issued by the M.C.Primary School, Singhola, Delhi, which reveals that the deceased's date of birth was 08.07.1961. The date of birth at the time of his employment in Delhi Jal Board was taken as 15.01.1953. The learned counsel for the Appellants have produced a photocopy of the medical certificate form which shows that deceased's date of birth was accepted as 15.01.1953 as per the affidavit filed by him. I would not have placed much importance to the medical certificate form produced at the time of the hearing but for the testimony of PW-1 and PW-3. PW-1 Smt. Sudesh, the deceased's wife testified that at the time of the accident her husband was aged 45 years. This part of her testimony was not challenged in the cross-examination. Similarly, the deceased's son Akash (PW-3) in his statement Ex.PW-3/A proved the school leaving certificate Ex.PW-3/1. The genuineness of this certificate which gives the deceased's date of birth as 08.07.1961 was not challenged in the cross- examination. It was not even suggested to PW-3 that his father was aged 54 years at the time of the accident or that the school leaving certificate was false. I would touch importance to the School Leaving Certificate Ex.PW-3/1, according to which the age of deceased was 46 years and 7 months. This also finds corroboration from the ages of other family members and deceased's father who was aged 65 years at the time of the accident because there would be at least a difference of 17-18 years between the age of the father and the son. If the deceased's father's age is taken as 65 years, there is difference of just 10 years between the age of the father and the son.

5. The deceased was in settled employment with Delhi Jal Board and was getting a salary of ` 11,871/-. A deduction of `250/- towards transport

allowance, washing allowance and cycling allowance, is made from it. The Appellant is entitled to an addition of 30% in the deceased's income as the deceased was between the age group of 40-50 years.

6. The loss of dependency thus comes to `17,74,398 (`11,666/-+30% x3/4 x12 x13). In addition, a sum of `55,000/- towards non-pecuniary heads are also granted and the total compensation comes to `18,29,398/-.

7. The compensation is enhanced from `11,52,564/- to `18,29,398/-.

Consequently, the enhanced compensation of `6,76,834/- shall carry interest @7.5% per annum from the date of filing the Appeal till the date of payment.

8. Ten percent of the enhanced compensation shall be payable to Appellants No. 2 to 7. Rest 40% shall be paid to the Appellant No.1. 50% of the enhanced compensation payable to Appellants No. 2 to 7 shall be held in Fixed Deposit for a period of 2 years and thereafter be released to them. The enhanced compensation payable to the Appellant No. 1 shall be held in Fixed Deposit with UCO Bank, Delhi High Court Branch for a period of 2 years, 4 years and 6 years, rest shall be released to the Appellant No.1.

9. The Appeal is allowed in above terms.

10. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE AUGUST 30, 2012 mr