National Insurance Co. Ltd vs Samida Khatoon Ors
2012 Latest Caselaw 1544 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Decided on: 5th March, 2012
+       MAC.APP. 1134/2011

        NATIONAL INSURANCE CO. LTD..... Appellant
                       Through: Mr. Pankaj Seth, Advocate
                versus

        SAMIDA KHATOON ORS.                      ..... Respondents
                    Through:                Mr. Rohit Singha, Adv. with
                                            Mr. Vivek Kumar, Adv.

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

                                JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for reduction of compensation of ` 30,14,800/-

awarded for the death of Shamsher Alam who died in an accident which occurred on 26.12.2009.

2. During the course of arguments, following contentions are raised:-

(i) The Motor Accident Claims Tribunal (the Claims Tribunal) erred in taking deceased's age to be 31 years. One of the married daughters of the deceased was aged about 23 years and thus the deceased could not have been aged 31 years.

(ii) The future prospects should not have been awarded as the deceased was not in Govt. service, and

(iii) The award of compensation of `2,25,000/- towards the loss of love and affection is exorbitant.

3. On the other hand, it is urged by the learned counsel for the Respondents/the Claimants that the deceased's age was shown 31 years in the Passport but the same was not challenged before the Claims Tribunal. In the grounds of Appeal, it has not been specifically averred that the age of the deceased was not 31 years.

4. The Respondents (Claimants) never claimed the deceased's age to be 31 years. Rather in the Claim Petition his age was mentioned as 38 years. Even in the postmortem report, the age was stated to be 38 years and thus the multiplier of 15 should have been adopted by the Claims Tribunal.

5. I have perused the record.

6. It is not disputed that the deceased had seven children including two married daughters. The age of one of the married daughters in the list of relations filed before the Claims Tribunal was mentioned as 23 years. It should have been taken as 38 years as mentioned in the postmortem report.

7. In order to prove the deceased's salary and nature of his employment Respondents No.1 to 9 examined PW-3 S.B.

Sharma who testified that the deceased was working as Pattern and Cutting Master and was getting a salary of ` 12,000/-per month. He further stated that he(the deceased) was a permanent employee and was entitled to annual increment. Thus, following the judgment in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, the Claims Tribunal rightly made addition of 50% of the deceased's income towards the future prospects.

8. The Claims Tribunal awarded a sum of ` 2,25,000/- i.e. ` 25,000/- per person to the legal representatives towards 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 from ` 2,25,000/- to ` 25,000/- only.

9. Considering the deceased's age to be 38 years, the Claims Tribunal ought to have selected the multiplier of '15' instead of '16'. The loss of dependency is recomputed as ` 25,92,000/- (` 12,000/- + 50% x 4/5 x 12 x 15).

10. The compensation payable to Respondents No.1 to 9 is

recomputed as under:-

          Sl.        Compensation under         Awarded by         Awarded by
                       various heads            the Claims          this Court
         No.                                     Tribunal

         1.         Loss of Dependency           `27,64,800/-       `25,92,000/-

         2.         Loss to Estate                 ` 10,000/-           ` 10,000/-

         2.         Loss of Consortium            ` 10,000/-            ` 10,000/-

         3.         Funeral Expenses                ` 5,000/-            ` 5,000/-

         3.         Loss of Love & Affection     ` 2,25,000/-           ` 25,000/-

                                         Total ` 30,14,800/- ` 26,42,000/-

11. The compensation of ` 26,42,000/- awarded to the Respondents No.1 to 9 shall carry interest @ 7.5% per annum from the date of filing of the petition till the date of payment. The same shall be apportioned as under:-

1. Samida Khatoon (wife) ` 5,67,000/-

          2.             Salatun (daughter)                         ` 3,00,000/-

          3.             Lailatun (daughter)                        ` 3,00,000/-

          4.             Tabassum (daughter)                        ` 3,00,000/-

          5.             Hasmatun (daughter)                        ` 3,00,000/-

          6.             Asrun (daughter)                           ` 3,00,000/-

          7.             Nasarun (daughter)                         ` 3,00,000/-





           8.        Md. Isaq (father)                              `   25,000/-

          9.        Jamila Khatoon (mother)                    ` 2,50,000/-

                                        TOTAL                ` 26,42,000/-

12. The excess amount of `3,72,800/- alongwith interest if any, accrued during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

13. The statutory amount of ` 25,000/- shall also be released to the Appellant Insurance Company.

14. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE MARCH 05, 2012 vk