Delhi High Court
Bajaj Allianz General Ins. Co. ... vs Dharmo Devi & Ors. on 15 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th February, 2012
+ MAC.APP. 447/2011
BAJAJ ALLIANZ GENERAL INS. CO. LTD. ..... Appellant
Through: Mr. Joy Basu, Advocate
versus
DHARMO DEVI & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Advocate for
R-1 to R-6.
AND
+ MAC.APP. 438/2011
SMT. DHARMO DEVI & ORS. ..... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
MANJEET SINGH & ORS. ..... Respondents
Through: Mr. Joy Basu, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These are two Cross Appeals. MAC APP.447/2011 is preferred
by Bajaj Allianz General Insurance Company Limited for
reduction of compensation of ` 17,36,824/- awarded by the
Motor Accident Claims Tribunal (the Claims Tribunal). In
Cross-Appeal being MAC APP.438/2011 the Appellants (who
were the Claimants before the Claims Tribunal in Suit
No.115/2010) seek enhancement of compensation.
2. For the sake of convenience, the Appellant in MAC
APP.447/2011 who is the Respondent No. 3 in MAC
APP.438/2011 shall be referred to as Insurer and the Appellants
in MAC APP.438/2011 (Respondents No.1 to 6 in MAC
APP.447/2011) shall be referred to as the Claimants.
3. One Daya Kishan (the deceased) who was aged about 54 years
at the time of his death and was working as a Safaikaramchari
in MCD, suffered fatal injuries in an accident which took place
on 13.01.2010. He succumbed to the injuries on the next day.
4. The Claims Tribunal accepted the deceased's salary to be `
17,748/-; after deducting a sum of ` 500/-, towards the expenses
incidental to employment and one-third towards the personal
living expenses, applied the multiplier of '11' (as the deceased
was aged about 54 years) to compute the loss of dependency.
5. Following contentions are raised on behalf of the Insurer:-
(i) Deduction towards the Income Tax was not made
although the deceased's salary was taxable.
(ii) A sum of ` 5,000/- was being contributed towards the
GPF; since this amount was not being spent by the
deceased on the family members, it should have been
deducted while computing the loss of dependency.
(iii) An award of `1,50,000/- towards the loss of love and
affection is exorbitant and excessive.
6. On the other hand, it is urged by the learned counsel for the
Claimants that considering the large family, the deduction
towards the personal living expenses should have been one-
fourth, and in view of the rising rate of interest grant of interest
@ 7.5% per annum was low.
7. The issue is no longer res integra as held in Sarla Verma (Smt.)
& Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC
121 as also in Shyamwati Sharma & Ors. v. Karam Singh &
Ors., (2010) 12 SCC 378, that actual salary less tax has to be
taken into consideration to calculate the loss of dependency.
The Claims Tribunal erred in not deducting the income tax from
the deceased's income.
8. It is true that the deceased was contributing a sum of ` 5,000/-
per month towards GPF. In case of Shyamwati Sharma & Ors
(Supra) it was held that deduction shown in the salary
certificate as deduction towards GPF, Life Insurance Premium,
repayment of loan, etc. should not be excluded from the income.
The Claims Tribunal rightly did not deduct a sum of ` 5,000/-
being contributed by the deceased towards GPF.
9. As far as award of a sum of ` 1,25,000/- towards loss of love
and affection is concerned. I may mention that, where the
Claimants are entitled to loss of dependency on actual basis,
normally a nominal sum is awarded under the head of 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 Claims Tribunal while computing the loss of dependency
deducted one-third towards the personal and living expenses on
the ground that the deceased's widow and only one young
married daughter were financially dependent on the deceased.
Thus, the Claims Tribunal's finding in deducting one-third of
the deceased income towards the personal and living expenses
cannot be faulted.
11. As far as award of interest @ 7.5% per annum is concerned, I
would not interfere with the same in view of the judgment of
the Supreme Court in Sarla Verma (supra).
12. In view of the following discussion, the loss of dependency is
re-assessed as ` 15,16,357/- (17,748/- x 12 - 6200 (income tax)
x 2/3 x 11).
13. The overall compensation can be tabulated as under:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Loss of Dependency `15,61,824/- `15,16,357/-
2. Loss to Estate ` 10,000/- ` 10,000/-
2. Loss of Consortium ` 10,000/- ` 10,000/-
3. Funeral Expenses ` 5,000/- ` 5,000/-
3. Loss of Love & Affection ` 1,50,000/- ` 25,000/-
Total ` 17,36,824/- ` 15,66,357/-
14. The compensation is thus reduced from `17,36,824/- to `
15,66,357/- including the interim compensation of ` 50,000/-.
15. Apportionment of the awarded amount amongst the
Respondents No.1 to 6 shall be as under:-
Sl. Name of the Apportioned Apportioned
Respondents/Claimants by the by this
No. Claims Court
Tribunal
1. Smt. Dharmo Devi (wife) `10,86,824/- `10,16,357/-
2. Babita (daughter) ` 25,000/- ` 25,000/-
3. Seema (daughter) ` 25,000/- ` 25,000/-
4. Sunil (son) ` 25,000/- ` 25,000/-
5. Suman (unmarried- ` 5,00,000/- `4,00,000/-
daughter)
6. Harish (Son) ` 25,000/- ` 25,000/-
Total ` 16,86,824/- ` 15,16,357/-
16. The excess amount of ` 1,70,467/- along with interest if any,
accrued during the pendency of the Appeal deposited by the
Insurer shall be refunded to it. The statutory amount of `
25,000/- shall also be refunded to the Appellant Insurer.
17. The amount awarded shall be disbursed / held in fixed deposit
in UCO Bank, Delhi High Court Branch, New Delhi in terms of
the Claims Tribunal's order.
18. MAC APP.447/2011 filed by the Insurer is allowed in above
terms.
19. MAC APP.438/2011 stands dismissed. No costs.
(G.P. MITTAL)
JUDGE
FEBRUARY 15, 2012
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