Anita & Ors. vs Prem Singh & Ors.
2012 Latest Caselaw 6661 Del

$~33
*         IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of decision: 21st November, 2012
+         FAO. 661/2002
          ANITA & ORS.                                             ..... Appellants
                                Through    Mr.Suresh C. Sati, Advocate
                       versus
          PREM SINGH & ORS.                                        ..... Respondents
                                Through    Mr.Pankaj Seth, Advocate for Insurance
                                           Company.

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

G. P. MITTAL, J. (ORAL) C.M. APPL No.19461/2012(Exemption) Exemption allowed, subject to all just exceptions. The Application stands disposed of.

C.M. APPL No.19460 & 19462/2012

1. There is a delay of 451 days in filing the Application for restoration of the Appeal.

2. The delay is condoned, subject to the condition that the factum of the delay shall be taken into consideration if the Appellants are able to make out a case for enhancement of compensation.

3. For the reasons as stated in the Application, the Appeal is restored to its original number.

4. Both the Applications are allowed.

FAO. 661/2002

5. The Appeal is for enhancement of compensation of ` 4,37,000/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) for the death of Trilok Chand who died in a motor vehicle accident which occurred on 03.04.1999.

6. It is stated by the learned counsel for the Appellant that the amount of compensation awarded by the Claims Tribunal has already been paid by the Respondent Insurance Company.

7. In the absence of any Appeal by the driver, owner or the Insurance Company, the finding on negligence has attained finality.

8. The following contentions are raised on behalf of the Appellant:-

(i) The Appellant proved the salary certificate Ex. PW-2/1 to the effect that the deceased was getting a salary of ` 3,500/- per month. The Claims Tribunal instead of taking into consideration the gross salary took the deceased's income as ` 3,000/- per month.

(ii) No addition was made towards inflation/ future prospects.

(iii) The compensation awarded towards non-pecuniary damages is on the lower side.

9. The Appeal must succeed on all the grounds.

10. I have before me the testimony of Suresh Chand (PW2), the deceased's employer. He testified that the deceased was getting a gross salary of ` 3,500/- per month. The certificate Ex. PW-2/1 to this effect was also

proved. PW-2's testimony on the salary was not challenged as per National Insurance Co. Ltd. v. Indira Srivastava & Ors., 2008 (2) SCC

763. It is settled that all the allowances and perks which are given for the benefit of all the family members are to be taken into consideration to compute the loss of dependency. Thus, the deceased's income ought to have been accepted as ` 3,500/- per month instead of ` 3,000/- per month.

11. It is true that there is no evidence with regard to the deceased's future prospects as he was working as a driver with M/s. Alumunium Fabricators (Engineers & Contractors), Jagjit Nagar, New Usmanpur, Delhi. Suresh Chand, its partner, appeared to show that the deceased Trilok Chand was working with them for last more than one year.

12. Even in the absence of any evidence, the Appellants were entitled to an addition of 30% towards inflation/future prospects on the basis of the judgment of the Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

13. The loss of dependency on applying the principle stated above, comes to ` 6,18,800/- (3,500/- + 30% x 2/3 x 12 x 17).

14. The Claims Tribunal awarded a sum of `4,000/- towards loss of funeral expenses. This accident took place in the year 1999. In the facts and circumstances of the case, the Appellants are entitled to a sum of ` 15,000/- towards loss of love and affection and ` 5,000/- each towards loss of consortium, loss to estate and funeral expenses.

15. The overall compensation thus comes to ` 6,48,800/-.

16. The enhanced compensation of `2,11,800/- shall carry interest @ 9% per annum from the date of filing of the Claim Petition till the date of the decision as granted by the Claims Tribunal and then for a period of five years @ 7.5% till the disposal of the Appeal, that is, today, on account of the fact that the Appellants' took lot of time in effecting service upon the Respondents and then the Appeal was dismissed in default on 9th August, 2011. The appellant would be further entitled to interest at the rate of 7.5% per annum from the date of the decision till its disposal with the Claims Tribunal.

17. Twenty five percent compensation shall be payable to each of Appellants No.2, 3 & Respondent No.5. Rest 25% shall enure for the benefit of Appellant No.1. 50% of the compensation awarded shall be held in fixed deposit for a period of two years. Rest shall be released on deposit.

18. The enhanced compensation of `2,11,800/- along with interest shall be deposited by Respondent No.4 Insurance Company with the Claims Tribunal within six weeks.

19. The Appeal is allowed in above terms.

20. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE NOVEMBER 21, 2012 v