Delhi High Court
National Insurance Company Ltd. vs Smt. Savitri & Ors on 12 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th October, 2012
+ MAC. APP. 271/2012
NATIONAL INSURANCE COMPANY LTD. ..... Appellants
Through: Mr. Pankaj Seth, Adv.
versus
SMT. SAVITRI & ORS. .... Respondents
Through: Mr. Sunil Kumar Verma, Adv. for R-1 to
R-7.
+ MAC. APP. 372/2012
SMT. SAVITRI & ORS ..... Appellants
Through: Mr. Sunil Kumar Verma, Adv.
Versus
DHEERAJ KUMAR & ORS. .... Respondents
Through: Mr. Pankaj Seth, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a common judgment dated 01.10.2011
passed by the Motor Accident Claims Tribunal (the Claims Tribunal) in
MACT No.66/10 whereby a compensation of `25,82,056/- was awarded
in favour of the legal heirs of deceased Ved Prakash who died in a motor
vehicle accident which occurred on 20.11.2009.
2. For the sake of convenience, the Appellant in MAC APP.271/2012 shall
be referred to as the Insurance Company whereas the Appellant in MAC
APP.372/2012 shall be referred to as the Claimants.
3. The finding on negligence is not challenged by the Appellant Insurance
Company thus, the same has attained finality.
4. To compute the loss of dependency, the Claims Tribunal accepted the
salary of the deceased Ved Prakash to be `22,509/-, considering the
number of dependents as seven, it deducted one-fifth towards the
personal and living expenses and applied the multiplier of 12 as per the
age of the deceased. Claims Tribunal further awarded a sum of
`1,75,000/- towards loss of love and affection and `10,000/- each
towards funeral expenses, loss to estate and loss of consortium.
5. The following contentions are raised on behalf of the Appellant:-
(i) The income tax payable on the deceased's actual income was
required to be deducted to compute the loss of dependency. In
support of the contention, reliance is placed on Sarla Verma (Smt.)
& Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121.
(ii) Claimants No.2,3 and 4 (Respondents No.2, 3 and 4 in MAC
APP.271/2012) are the married daughters of the deceased. They
were not financially dependent on the deceased Ved Prakash.
Virtually, the number of dependents were four and deduction of
one-fourth was required to be made instead of one-fifth done by the
Claims Tribunal.
(iii) One of the legal heirs applied for appointment in place of deceased
Ved Prakash with the employer of the deceased on compassionate
ground. The same ought to have been taken into account to award
the loss of dependency.
(iv) Award of `1,75,000/- towards loss of love and affection is on the
higher side.
6. On the other hand, the learned counsel for the Claimants states that the
actual salary of the deceased at the time of the accident was `32,524/-.
The Claims Tribunal erred in not taking the allowance into consideration
to compute the loss of dependency.
7. From the salary sheet Ex.PW-2/A and the salary slip Ex.PW-2/B it is
clear that the deceased's gross salary inclusive of all allowance was
`32,524/- there was a deduction of `8,000/- towards GPF, `2,000/-
towards advance taken from the GPF and `15/- towards misc. charges.
These deductions were for the benefit of the deceased and his family
members and were to be taken into consideration to compute the loss of
dependency. Thus, the entire income of `32,524/- was to be considered to
compute the loss of dependency.
8. It is no longer res integra that the actual income of the deceased minus
income tax has to be taken into consideration to compute the loss of
dependency. (Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation
& Anr., (2009) 6 SCC 121).
9. Out of the gross salary of `32,524/-, a sum of `5697/- per month was
being paid to the deceased towards HRA and was therefore, not taxable.
The liability of income tax on an income of ` 3,90,288/- (`32,524/- x 12)
was thus about `10,000/- per annum.
10. It was admitted in cross-examination of PW-1 that Respondents No.2,3
and 4 are the married daughters. Thus, they were not financially
dependent. The Claims Tribunal erred in making deduction of one-fifth
towards personal and living expenses it should have been one-fourth
instead of one-fifth.
11. As far as application moved by one of the legal heirs of the deceased for
an appointment on compassionate ground is concerned, admittedly, no
appointment was offered till the decision of the Claim Petition. It is
stated by the learned counsel for the Claimants that the application was
rejected. In the case of National Insurance Co Ltd v. Charanjeet Kaur
@ Simmi & Ors. MAC APP.734/2010 decided on 16.07.2012 this Court
held that the appointment on compassionate ground would not be a factor
to be considered for reduction of compensation unless compassionate
appointment is offered only on account of the accidental death. Since the
Respondent Maheshverdutt Sharma's application for appointment on
compassionate ground has since been rejected, no deduction is required to
be made under this head.
12. The loss of dependency thus comes to ` 31,37,376/- (32,524/- x 12 -
10,000/- (income tax) x 3/4 x 11).
13. The Claims Tribunal awarded a sum of `1,75,000/- 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 to `
25,000/- only.
14. The compensation of `10,000/- each awarded towards funeral expenses,
loss to estate and loss of consortium is not disputed by either of the
parties, the same is maintained.
15. The overall compensation thus comes to `31,92,376/-.
16. The compensation, therefore, stands enhanced by `3,10,230/- which shall
carry interest @ 7.5% per annum from the date of filing of the petition till
its payment.
17. Appellant National Insurance Company Limited is directed to deposit the
enhanced compensation along with interest with the Claims Tribunal
within six weeks.
18. The entire enhanced compensation shall enure for the benefit of the First
Claimant.
19. Eighty percent of the enhanced compensation shall be held in fixed
deposit for a period of two years, four years and six years in equal
proportion. Rest shall be released on deposit.
20. Both the Appeals are disposed of in above terms.
21. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
22. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 12, 2012
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