Delhi High Court
Iffco Tokio Gen. Ins. Co. Ltd vs Kusum Pandey & Ors. on 13 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th January, 2012
Pronounced on: 13th January, 2012
+ MAC APP. 457/2011
IFFCO TOKIO GEN. INS. CO. LTD. ...... Appellant
Through: Ms. Shantha Devi Raman, Advocate.
Versus
KUSUM PANDEY & ORS. ...... Respondents
Through: Mr. Ajeet Kumar, Proxy for Mr.
Kartar Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant impugns the award passed by the Motor
Accident Claims Tribunal on 26.02.2011, wherein the
Respondent No.1 to 7 herein were granted a compensation of `
9,73,000 for the death of the of one Brij Kumar Pandey who
was aged 48 years.
2. On 14.03.2008 the deceased was travelling on his Motorcycle
bearing the Registration No. DL-9SF-9716 towards Dwarka;
when he reached near MRV School, Sector-13, Dwarka a
tractor bearing the Reg. No. HR-26G-2919, driven by the
Respondent No.8 (Respondent No.1 before the Tribunal) hit the
vehicle of the deceased as a result of which he (deceased)
sustained grievous injuries, which resulted in his death.
3. The contentions raised on behalf of the Appellants are:
(i) That there was no evidence on record to prove that the
deceased was a 'Skilled Worker', therefore the minimum
wages of an unskilled worker should have been
considered.
(ii) That the deceased was not entitled to the increase in
income as his income was not proved on record and the
same was taken according to the minimum wages. Even
if an increase was to be given it should have been only
30% as the deceased was aged 48 years.
(iii) That the compensation granted under the head of 'Loss of
Love and Affection' and the interest granted was on the
higher side.
CONTENTION (i):
4. Kusum Pawdey, the deceased's wife in her affidavit (Ex.PW-
1/6) testified that the deceased was doing a private job and was
earning ` 7000/- p.m. She deposed that the deceased was a
diploma holder from ITI, Nizamuddin. In cross-examination by
the Appellant insurance Co., (Respondent No.3 before the
Tribunal) she (PW-1) admitted that she did not place on record
any documentary evidence regarding the income of her
husband. But no suggestion was put to the witness that the
deceased was not working at all or that her husband was not a
diploma holder - the witness was only suggested that the
deceased was not earning ` 7000/-. Since it was not the case of
the Insurance Company that the deceased was not a diploma
holder I am of the view that the Tribunal rightly took the
minimum wages of a 'Skilled Worker' to compute the income
of the deceased.
CONTENTION (ii)
5. The Tribunal relying on the Judgment of this Court in Narender
Bishal and Anr. v. Rambir Singh and Others MAC.App. 1007-
08/2006, added 50% increase on the Minimum wages and
accordingly computed the Loss of Dependency.
6. The next question for consideration is whether the increase in
minimum wages is to be given across the board, or whether the
age of the deceased is to be taken into account while dealing
with the question of grant of future prospects. The Supreme
Court in Sarla Verma v. DTC, (2009) 6 SCC 121 held that 50%
increase towards future prospects may be granted (wherever
applicable) when the deceased is aged below 40 years, 30%
where the deceased is aged between 40 to 50 years and nil
where the deceased is above 50 years. I would extend the ratio
to grant increase in minimum wages as per Sarla Verma v. DTC
(supra). Thus in the instant case the Claimants would be
entitled to an increase of 30% only as against 50% granted by
the Tribunal.
CONTENTION (iii)
7. The Tribunal relying on the Judgment of this Court in Kailash
Kaur and Another v. New India Assurance Company Limited,
MAC. App. 318/2008 granted ` 25,000/- each (` 1,75,000/- in
total) to the Respondent No. 1 to 7 (Petitioners No.1 to 7 before
the Tribunal) under the head of 'Loss of Love and Affection'. 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.
COMPENSATION:
8. The tribunal rightly took the minimum wages of a 'Skilled
Worker' i.e. ` 4100 (` 4057/- rounded off to ` 4100/-), but it had
wrongly added 50% increase to the said amount, instead of
adding only 30% - considering the age of the deceased (48
years). Therefore adding 30% increase to ` 4100/- is ` 5330/-
and further deducting 1/5th (` 1066/-) towards the deceased's
personal expenses, the income of the deceased would be `
4264/- p.m. or ` 51,168/- p.a. Now, applying the multiplier of
'13' (as the deceased was 48 years) to the said amount (`
51,168/-) the total loss of dependency would be computed at `
6,65,184/-.
9. Further, adding compensation of ` 25,000/- under the head of
loss of love and affection and ` 10,000/- each for Loss of
consortium, estate and funeral expenses the total compensation
would be computed at ` 7,20,185/-.
10. The excess compensation if any deposited by the Appellant
shall be returned to it along with interest earned, if any, during
the pendency of the Appeal on the said amount.
11. The appeal is allowed in the above terms.
12. The impugned award is modified to the extent indicated above.
No costs.
(G.P. MITTAL)
JUDGE
JANUARY 13, 2012
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