Delhi High Court
New India Assurance Company Ltd. vs Rama Shanker & Ors. on 19 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th November, 2012
+ MAC.APP. 243/2012
NEW INDIA ASSURANCE COMPANY LTD. ...... Appellant
Through: Mr. Shekhar Aggarwal, Adv. for
Mr. Kanwal Chaudhary, Adv.
versus
RAMA SHANKER & ORS. ..... Respondents
Through: Mr. Sunil K. Kalra, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `11,80,960/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of
Respondents No.1 to 5 for the death of Smt. Sunita, who died in a motor
vehicle accident which occurred on 05.04.2011.
2. The finding on negligence reached by the Claims Tribunal is not
challenged by the Appellant Insurance Company. Thus, the same has
attained finality.
3. During inquiry before the Claims Tribunal it was claimed that Smt.
Sunita was running a kirana shop and was earning `10,000/- per month.
In the absence of any cogent evidence with regard to the deceased's
income, the Claims Tribunal took the minimum wages of an unskilled
worker, i.e. `6422/- per month, added 50% towards inflation to compute
the loss of dependency as `11,55,960/-.
4. The Claims Tribunal further awarded a sum of `10,000/- each towards
loss of consortium and loss to estate and `5,000/- towards funeral
expenses.
5. A short submission raised by the learned counsel for the Appellant is that
in the absence of any evidence with regard to the deceased's future
prospects, an addition of 50% could not have been made by the Claims
Tribunal. Reliance is placed on Santosh Devi v. National Insurance
Company Ltd. & Ors., 2012 (4) SCALE 559.
6. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that as per Santosh Devi even in the absence of any evidence as to
future prospects an increase of 30% in the income has to be provided
where the victim had fixed income or was a self employed person.
Relevant portion of Santosh Devi 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."
7. Thus, relying on Santosh Devi I am of the view that even in the absence
of any cogent evidence with regard to the deceased's future prospects,
there could have been an addition of 30% in the assumed income of the
deceased and not 50%.
8. The loss of dependency thus comes to `10,01,832/- (6422/- + 30% x 2/3
x 12 x 15) as against `11,55,960/- awarded by the Claims Tribunal.
9. In addition, the Claimants are entitled to a sum of `25,000/- towards loss
of love and affection and `10,000/- each towards loss of consortium, loss
to estate and funeral expenses.
10. Thus, the overall compensation comes to `10,56,832/- as against
`11,80,960/- awarded by the Claims Tribunal.
11. The excess amount of `1,24,128/- 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. The compensation awarded shall be disbursed/held in fixed deposit in
favour of the Claimants in terms of the order passed by the Claims
Tribunal.
13. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
14. The Appeal is allowed in above terms.
15. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 19, 2012
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