Delhi High Court
Sapna K.C. & Ors. vs Azad Khan & Ors. on 18 December, 2012
Author: G.P. Mittal
$ 16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th December, 2012
+ MAC. APP. 1164/2012
SAPNA K.C. & ORS. ..... Appellants
Through: Mr. O.P. Mannie, Advocate.
Versus
AZAD KHAN & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `6,85,900/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal) awarded in
favour of the Appellants for the death of K.C. Gokran who died in a
motor vehicle accident which occurred on 06.10.2010.
2. In the absence of any Appeal by the driver, owner or the insurer of the
offending vehicle, the finding on negligence has attained finality.
3. During the inquiry before the Claims Tribunal, it was claimed that the
deceased was a self employed person earning `10,000/- per month. In
cross-examination of PW2, it came on record that the deceased was
working as a halwai. In the absence of any evidence with regard to the
deceased's income, the Claims Tribunal took minimum wages of an
unskilled worker, deducted 1/3rd towards personal and living expenses (as
the number of dependents were three) and applied a multiplier of 15 as
per the age of the deceased(40 years).
4. It is urged by the learned counsel for the Appellants that since it was not
challenged that deceased was working as a halwai, the loss of
dependency ought to have been computed on the minimum wages of a
skilled worker. Furthermore, even if there was no evidence with regard
to the future prospects, an addition of 30% should have been made
towards inflation.
5. The Appeal must succeed on both the grounds.
6. It had come in the cross-examination of PW2 that the deceased was
working as a halwai. This fact was not controverted either by giving any
suggestion or by producing any evidence in rebuttal. The Appellants are,
therefore, entitled to loss of dependency on the basis of minimum wages
of a skilled worker.
7. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that as per Santosh Devi even in the absence of any evidence as to
future prospects an increase of 30% in the income has to be provided
where the victim had fixed income or was a self employed person.
Relevant portion of Santosh Devi is extracted hereunder:-
"14.....In our view, it will be naive to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual increment,
etc., would remain the same throughout his life. The rise in the cost
of living affects everyone across the board. It does not make any
distinction between rich and poor. As a matter of fact, the effect of
rise in prices which directly impacts the cost of living is minimal
on the rich and maximum on those who are self- employed or who
get fixed income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families. The salaries of those
employed under the Central and State Governments and their
agencies/instrumentalities have been revised from time to time to
provide a cushion against the rising prices and provisions have
been made for providing security to the families of the deceased
employees. The salaries of those employed in private sectors have
also increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the Government
would be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one lac.
Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot be
denied that there has been incremental enhancement in the income
of those who are self-employed and even those engaged on daily
basis, monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges posed by
high cost of living, the persons falling in the latter category
periodically increase the cost of their labour. In this context, it
may be useful to give an example of a tailor who earns his
livelihood by stitching cloths. If the cost of living increases and the
prices of essentials go up, it is but natural for him to increase the
cost of his labour. So will be the cases of ordinary skilled and
unskilled labour, like, barber, blacksmith, cobbler, mason etc.
Therefore, we do not think that while making the observations in
the last three lines of paragraph 24 of Sarla Verma's judgment, the
Court had intended to lay down an absolute rule that there will be
no addition in the income of a person who is self-employed or who
is paid fixed wages. Rather, it would be reasonable to say that a
person who is self-employed or is engaged on fixed wages will also
get 30 per cent increase in his total income over a period of time
and if he / she becomes victim of accident then the same formula
deserves to be applied for calculating the amount of
compensation."
8. The loss of dependency thus comes to `10,05,887/-(`6,448/- + 30% x 2/3
x 12 x 15)
9. The Appellants are further entitled to a sum of `25,000/- towards loss of
love and affection and `10,000/- each towards loss of consortium, loss to
estate and funeral expenses.
10. The overall compensation is thus enhanced to `10,60,887/-.
11. The enhanced compensation of `3,74,987/- shall carry interest @ 9% per
annum from the date of filing of the Petition till its payment. The
enhanced amount shall be payable in equal proportion in favour of the
Appellants(Claimants). 75% of the amount payable to First Appellant
shall be held in fixed deposit for a period of five years, rest shall be
released on deposit. The First Appellant shall be entitled to quarterly
interest on the amount held in fixed deposit.
12. The Respondent No.3 Oriental Insurance Co. Ltd. is directed to deposit
the enhanced compensation of `3,74,987/- along with interest with the
Claims Tribunal within six weeks.
13. The Appeal is allowed in above terms.
14. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 18, 2012
pst
