Delhi High Court
Cholamandalam Ms General Ins Co. ... vs Ram Kumar & Ors. on 19 July, 2012
Author: G.P. Mittal
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:19th July, 2012
+ MAC. APP. No.757/2011
CHOLAMANDALAM MS GENERAL INS CO. LTD.
..... Appellant
Through: Ms. Suman Bagga, Advocate
Versus
RAM KUMAR & ORS. ..... Respondents
Through: Mr.Himanshu Yadav, Advocate
proxy counsel for Mr. V.K.
Sharma, Advocate for the
Respondents No.1 & 2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `7,63,352/-
awarded in favour of the Respondents No.1 and 2 for the death
of Yogesh Kumar who died in a motor vehicle accident which
occurred on 28.06.2009.
2. On appreciation of evidence the Motor Accident Claims
Tribunal(the Claims Tribunal) found that the accident was
caused on account of rash and negligent driving of Eicher
Canter No.HR-55E-7530 driven by the Respondent Vinod
Kumar. The said finding is not challenged by the Appellant.
3. While awarding a compensation towards loss on dependency,
the Claims Tribunal found that the deceased was a matriculate;
it took minimum wages of a matriculate, added 50% towards
inflation to compute the loss of dependency as `6,38,352/-. The
Claims Tribunal further awarded a sum of `1,00,000/- towards
loss of love and affection and `25,000/- towards funeral
expenses.
4. The learned counsel for the Appellant argues that in this case
there was no evidence of bright future prospects and thus the
Claims Tribunal erred in granting 50% addition.
5. In Santosh Devi v. National Insurance Company Ltd. & Ors.,
2012 (4) SCALE 559, the Supreme Court laid down that in case
of self-employed and persons having fixed income, an increase
to the extent of 30% could be given towards inflation. Para 14
of the report is extracted hereunder:
"14........In our view, it will be naive to say that the
wages or total emoluments/income of a person who is
self-employed or who is employed on a fixed salary
without provision for annual increment, etc., would
remain the same throughout his life. The rise in the
cost of living affects everyone across the board. It
does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which
directly impacts the cost of living is minimal on the
rich and maximum on those who are self- employed or
who get fixed income/emoluments. They are the worst
affected people. Therefore, they put extra efforts to
generate additional income necessary for sustaining
their families. The salaries of those employed under
the Central and State Governments and their
agencies/instrumentalities have been revised from
time to time to provide a cushion against the rising
prices and provisions have been made for providing
security to the families of the deceased employees.
The salaries of those employed in private sectors have
also increased manifold. Till about two decades ago,
nobody could have imagined that salary of Class IV
employee of the Government would be in five figures
and total emoluments of those in higher echelons of
service will cross the figure of rupees one lac.
Although, the wages/income of those employed in
unorganized sectors has not registered a
corresponding increase and has not kept pace with
the increase in the salaries of the Government
employees and those employed in private sectors but
it cannot be denied that there has been incremental
enhancement in the income of those who are self-
employed and even those engaged on daily basis,
monthly basis or even seasonal basis. We can take
judicial notice of the fact that with a view to meet the
challenges posed by high cost of living, the persons
falling in the latter category periodically increase the
cost of their labour. In this context, it may be useful to
give an example of a tailor who earns his livelihood
by stitching cloths. If the cost of living increases and
the prices of essentials go up, it is but natural for him
to increase the cost of his labour. So will be the cases
of ordinary skilled and unskilled labour, like, barber,
blacksmith, cobbler, mason etc. Therefore, we do not
think that while making the observations in the last
three lines of paragraph 24 of Sarla Verma's
judgment, the Court had intended to lay down an
absolute rule that there will be no addition in the
income of a person who is self-employed or who is
paid fixed wages. Rather, it would be reasonable to
say that a person who is self-employed or is engaged
on fixed wages will also get 30 per cent increase in
his total income over a period of time and if he / she
becomes victim of accident then the same formula
deserves to be applied for calculating the amount of
compensation."
6. Following Santosh Devi(supra), this Court in Rakhi v. Satish
Kumar & Ors. (MAC. APP. 390/2011) decided on 16.07.2012
held that the claimants would be entitled to an increase in the
income on account of inflation.
7. Thus, the Respondents were entitled to an increase of 30% on
account of inflation. The loss of dependency thus comes to
`5,56,670/-(`6488/- + 30% x 12 x 1/2 x 11) as against `
6,38,352/- awarded by the Claims Tribunal.
8. It is urged that the compensation of `1,00,000/- awarded
towards loss of love and affection is excessive. Normally, when
full compensation towards loss of dependency is granted only a
nominal sum is awarded towards loss of love and affection.
The trend of the High Court and the Supreme Court is to grant a
sum of `25,000/- under this head. Such a sum was granted by
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 towards love and
affection. However, in a later judgment in Amrit Bhanu Shali &
Ors. v. National Insurance Company Ltd. & Ors. (2012) 6 SCALE
1, in case of a death of bachelor, a compensation of `1,00,000/-
was awarded by the Supreme Court. In the circumstances, I am
not inclined to interfere in the award of a compensation of
`1,00,000/- towards loss of love and affection.
9. The Claims Tribunal awarded a sum of `25,000/- towards
funeral expenses, which in the absence of any evidence as to the
actual expenditure is on the higher side. The same is reduced to
`10,000/-. The Claims Tribunal did not award any
compensation towards loss to estate. I make a provision for a
sum of `10,000/-.
10. The overall compensation is reduced from `7,63,352/- to
`6,76,670/-.
11. The amount awarded by this Court shall be disbursed in favour
of the Respondents No.1 and 2 in terms of the order passed by
the Claims Tribunal. The excess amount of `86,682/- along
with proportionate interest and the interest accrued, if any,
during the pendency of the Appeal shall be refunded to the
Appellant Insurance Company.
12. Statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
13. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 19, 2012
pst
