Delhi High Court
New India Assurance Co. Ltd. vs Phoolwati & Ors. on 9 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 9th February, 2012
+ MAC APP. 510/2011
NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr. Kanwal Chaudhary, Advocate
Versus
PHOOLWATI & ORS. ..... Respondents
Through: Ms. Pinki Talukdar, Advocate
for Respondent No.1(a) to (g)
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL. No.10880/2011(stay)
By an order dated 31st May, 2011 stay was granted subject to
deposit of the award amount along with interest and 50% of the award
amount was directed to be released in favour of respondents No.1(a) to
1(g) in terms of the paragraphs No. 37 to 39 of the impugned
judgment. The stay is made absolute.
The application stands disposed of.
MAC. APP. No. 510/2011
1. This Appeal is for reduction of compensation of `11,57,100/-
awarded for the death of Amit who was aged 24 years and a
bachelor at the time of the accident which occurred on
23.09.2007.
2. By the impugned order, the Claims Tribunal accepted the
deceased's salary as `7225/- which was proved by the salary
certificate issued by his employer and added 50% towards
future prospects, deducted 1/3rd towards the personal and living
expenses and computed the loss of dependency as `11,27,100/-.
3. It is urged by the learned counsel for the Appellant that there
was no evidence to show that the deceased was in permanent
employment earning increments. Thus, the Tribunal erred in
adding 50% of the deceased's income towards future prospects.
It is contended that deduction of 1/3rd towards the personal and
living expenses was also in violation of the judgment of Sarla
Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121, wherein it was held that in case of a bachelor, there
should be 50% deduction towards personal expenses.
4. The Respondents Claimants failed to prove on record that the
deceased was in permanent employment. Even the period of
employment was not established. In these circumstances, the
Claims Tribunal erred in granting 50% of the deceased's
income towards future prospects.
5. As far as deduction of 1/3rd towards personal and living
expenses is concerned, the observations of the Claims Tribunal
in para 26 are extracted hereunder:
"26. It was contended on behalf of R3 that as per
the law laid down in the case of Sarla Verma Vs.
DTC, in the case of bachelor his personal expenses
should be taken as 50%. PW1 stated that deceased
was contributing major portion of his income for the
family and for education of his sisters. His father was
not earning. The rule of 50% deduction as personal
expenses is only a guideline. In appropriate cases,
the personal expenses may be taken as 1/3rd of the
income in the case of a bachelor. Keeping in view the
circumstances, I take the personal expenses of
deceased as 1/3rd. Out of average income of
`10,837.50, 1/3 income i.e. Rs.3,612.50 would be
deducted for the purpose of calculation of
compensation. In view of the above findings, the age
of the mother of deceased Smt. Phoolwati Paswan
was 46 years at the time of accident whereas the age
of deceased was 24 years.
6. In the case of Sarla Verma(supra), it was laid down that as a
thumb rule in case of a death of a bachelor, a deduction of 50%
of his income would be made towards his personal and living
expenses. The Supreme Court added that where the family of
the bachelor is large and there are number of younger non-
earning sisters and brothers, his personal and living expenses
may be restricted to 1/3rd and contribution to the family will be
taken as 2/3rd.
7. In the instant case, PW1 deposed that the deceased was
contributing major portion of his income for the family and for
the education of his sisters. He testified that the deceased's
father was not earning. This part of the testimony was not
assailed. The Claims Tribunal finding deducting 1/3rd towards
personal living expenses in the circumstances cannot be faulted.
8. It is well settled that in order to claim the benefit of future
prospects the Claimants were required to prove that the
deceased had bright future prospects or that he was in
permanent employment. [Sarla Verma v. DTC, (2009) 6 SCC
121; Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors., (2006) 3
SCC 242]. Neither of the two was done. In these
circumstances, future prospects were not admissible.
9. The compensation awarded towards the loss of love and
affection was on the lower side. This needs to be enhanced to
`25,000/- in view of the judgment of 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. In view
of the discussion above, the compensation is recomputed as
under:
Loss of Dependency `7,51,400/-
(7225 X 12 X 2/3 X 13)
Loss of Love and Affection `25,000/-
Loss to Estate `10,000/-
Funeral Expenses `10,000/-
Total `7,96,400/-
10. The overall compensation is reduced from `11,57,100/- to
`7,96,400/-.
11. The excess amount along with the interest earned, if any, during
the pendency of the Appeal shall be refunded to the Appellant
Insurance Company. The remaining amount awarded in favour
of the Respondents shall be disbursed/held in Fixed Deposit in
the manner as directed by the Claims Tribunal in the impugned
order.
12. The appeal is allowed in above terms.
13. The statutory amount of `25,000/- deposited be returned to the
Appellant New India Assurance Co. Ltd.
(G.P. MITTAL)
JUDGE
FEBRUARY 09, 2012
pst
