Delhi High Court
Rashmi Devi & Ors. vs Sanjeev Kumar & Ors. on 23 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th January, 2012
Pronounced on: 23rd January, 2012
+ MAC APP. 891/2010
RASHMI DEVI & ORS. ..... Appellants
Through: Mr. Rajinder Gupta, Adv.
versus
SANJEEV KUMAR & ORS. ..... Respondents
Through: Mr. R. C. Mahajan, Adv. for
Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellants, who are the legal heirs of deceased Pritam
Singh seek enhancement of compensation for the deceased's
death in a motor accident, which took place on 15.02.2007. It
was alleged that the deceased was 54 years at the time of
accident. His salary was retrospectively revised to the basic pay
of ` 24,060/- apart from payment of 6% as dearness allowance
on the date of the accident. It was claimed that the deceased
was entitled to the transport allowance @ ` 1,830/- per month in
the revised pay scale. The Tribunal took the deceased's income
as ` 24,460/- per month and deducted 1/4th towards personal
living expenses, applied the multiplier of '11' to compute the
loss of dependency as ` 24,21,540/- after awarding notional
sums towards non pecuniary damages, the overall compensation
of ` 19,16,540/- was awarded.
2. The contentions raised on behalf of Claimants are: -
(i) The Transport Allowance of ` 1,860/- and the House
Rent Allowance @ 30% of the basic pay was not taken
into consideration while computing the loss of
dependency.
3. On the other hand, it is urged on behalf of Respondent
Insurance Company that the Transport Allowance was
incidental for reaching the office during employment. The said
amount was not for the benefit of the family. The same was not
liable to be included for the purpose of computation of the loss
of dependency. It is contended that since the deceased was
allowed government accommodation, the HRA was not liable to
be considered in computing the loss of dependency. It is urged
that the deceased's elder son was aged 26 years. His testimony
that he was working only on part time basis was of no avail. He
being a married son was not financially dependent on the
deceased and thus taking one unmarried son of the deceased as
dependent, 1/3rd of the deceased's income was liable to be
deducted towards his personal living expenses.
4. It is well settled that all allowances for the benefit of the
employee are to be taken into consideration for the purpose of
computing the loss of dependency. The Transport Allowance
given to an employee to reach his office is an allowance
incidental to employment. The same was, therefore, not liable
to be included in the deceased's actual income. It was,
however, not disputed in cross-examination of the first
Appellant that a government accommodation was provided to
the deceased and, therefore, he was not being paid the House
Rent Allowance, which is @ 30% of the Basic pay + Grade Pay.
The provision of a government accommodation or payment of
House Rent Allowance when not availing the facility of
government accommodation is for the benefit of the family thus
30% of the pay shall have to be included in the deceased's
salary without any liability of payment of income tax on this
amount. In Raghuvir Singh Matolya & Ors. v. Hari Singh
Malviya & Ors., (2009) 15 SCC 363, it was held that House
Rent Allowance (HRA) is to be included in the deceased's
income for computation of the loss of dependency.
5. It has come in the evidence of the second Appellant Naveen
Kumar that he was married. He deposed that he was employed
only on part time basis. In any case, he cannot be treated as
financially dependent on his deceased father. The deduction
towards personal living expenses, therefore, should have been
1/3rd instead of 1/4th. Since, the amount of HRA is not taxable
if utilized for payment of rent, there would not be any deduction
towards income tax on this amount. On the basis of above
discussion, the loss of dependency comes to ` 25,80,227/- [`
24,060/- (basic pay) + ` 1,443/- (6% DA) x 12 - ` 40,810/-
(income tax) + ` 86,616/- (HRA ` 7218/- x 12) - 1/3rd x 11 = `
25,80,227/-].
6. The Tribunal awarded a sum of ` 1,25,000/- towards love and
affection, which is on the higher side. 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 reduce the compensation under this head to `
25,000/- only.
7. The enhanced compensation of ` 7,18,687/- shall carry interest
@ 7.5% per annum from the date of filing of the petition till the
date of the payment.
8. Out of the enhanced compensation 25% along with
proportionate interest shall be paid to the third Appellant Jai
Singh. Rest of the amount shall go to the first Appellant
Rashmi Devi.
9. 20% of the enhanced amount along with proportionate interest
shall be released to the first and the third Appellant forthwith.
Rest of the amount shall be held in FDR for a period of 5 years
in UCO Bank, Delhi High Court Branch, New Delhi.
Respondent No.3 the Oriental Insurance Company Ltd. is
directed to deposit the enhanced amount along with interest
within 30 days.
10. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
JANUARY 23, 2012
hs
