Ashish Jain & Ors. vs Balram @ Baliram & Ors.
2012 Latest Caselaw 4197 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 16th July, 2012
+        MAC.APP. 254/2004

         ASHISH JAIN & ORS.                         ..... Appellants
                        Through:        Mr. Navneet Goel, Adv. with
                                        Ms. Suman N. Rawat, Adv.

                     versus

         BALRAM @ BALIRAM & ORS.             ..... Respondents
                      Through:   Mr. A.K. Soni, Adv. for R-3.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `4,99,200/-

awarded for the death of Jainendra Kumar Jain who died in a motor vehicle accident which occurred on 17.10.1996.

2. On appreciation of evidence, the Claims Tribunal found that the accident was caused because of rash and negligent driving of the truck No.HR-38A-8285 by the First Respondent. It was claimed that the deceased was carrying out the business of sale of clothes in the name and style of M/s. Prem Textiles. He was earning `10,000/- to `15,000/- per month. The Claims Tribunal accepted the deceased's income to be `4,800/- per month and after deducting one-third of the income towards personal and

living expenses granted a compensation of `4,99,200/- towards the loss of dependency.

3. The following contentions are raised on behalf of the Appellants:-

(i) The Claims Tribunal erred in taking the deceased's income to be `4800/- per month. Ample evidence was produced by the Appellants to show that the deceased was having income of at least `10,000/- per month from the business in the name and style of M/s. Prem Textiles.

(ii) As the deceased was aged 43 years, the Appellants were entitled to an addition of 30% in the income on the basis of the judgment in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

(iii) No compensation was awarded towards loss of love and affection and other non-pecuniary heads.

4. The Appeal must succeed on all the three grounds.

5. It is admitted case of the Appellants that although the deceased's income was claimed to be `10,000/- to `15,000/- per month but the deceased was not paying any income tax. The accident took place on 17.10.1996. In the Assessment Year 1996-97 any income beyond `40,000/- per annum was subject to payment of income tax.

6. It is urged by the learned counsel for the Appellants that the Appellants who were the deceased's minor children and aged mother might not have been able to lay hands on the Income Tax Return (ITR) filed by the deceased (as the deceased's wife Premlata Jain also died in this very accident) and therefore, the Claims Tribunal ought to have made assessment of the deceased's income from the evidence placed on record.

7. It is contended that even if the deceased was not paying income tax and there was sufficient proof of the deceased's income, the Claims Tribunal should have granted the loss of dependency on the basis of the deceased's income.

8. Learned counsel for the Appellants has taken me through the documents Exs.PW-1/18 to PW-1/200 which are the goods receipts in respect of the dispatch of goods to various shopkeepers. The deceased was a graduate from Delhi University and also possessed a Diploma in computer. The deceased also had a savings account as well as a current account in the name of M/s. Prem Textiles which was duly proved by PW-6. The statement of account Ex.PW-6/4 reveals that there were a number of transactions in the current account of M/s. Prem Textiles. A sum of `13,000/-, `52,000/-, `65,000/-, `93,000/- and `29,000/- was deposited in year 1996 during the months of January, February, March, April and May respectively. All these documents show that the deceased must be having a good income from his business in textiles. Yet, in

the absence of ITRs, it would be difficult to say that the deceased was having an income of `10,000/- to `15,000/-. Therefore, I would assess the deceased's income to be about `6,000/- per month. On making addition of 30% towards the inflation (Santosh Devi (supra)) and applying the multiplier of '14' as the deceased was aged 43 years, the loss of dependency would come to `8,73,600/- (6,000/- + 30% x 2/3 x 12 x 14).

9. I would further make a provision of `25,000/- towards loss of love and affection and `5,000/- each towards funeral expenses and loss to estate. The overall compensation thus comes to `9,08,600/-.

10. The enhanced compensation of `4,09,400/- shall carry interest @ 7.5% per annum from the date of filing of the petition till its deposit.

11. Respondent No.3 the Oriental Insurance Company Limited is directed to deposit the enhanced compensation along with interest in the name of the Claimants in the UCO Bank, Delhi High Court Branch, New Delhi within six weeks.

12. The compensation along with interest shall be payable to the three Appellants in equal proportion.

13. Since this accident took place almost 17 years ago, 50% of the enhanced compensation along with proportionate interest shall

be held in fixed deposit for a period of three years. Rest shall be released on deposit.

14. The Appeal is allowed in above terms.

15. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE

JULY 16, 2012 vk