Raj Kumar Rustagi & Ors. vs Sanjeev Kumar & Ors
2012 Latest Caselaw 5690 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 20th September, 2012

+        MAC. APP. No.453/2010

         RAJ KUMAR RUSTAGI & ORS.               ..... Appellant
                      Through: Mr. Navneet Goyal with Ms. Suman N.
                               Rawat, Advocates

                        Versus

         SANJEEV KUMAR & ORS                              .....Respondents
                     Through:            Mr. Sunil Kumar, Advocate for the
                                         Respondent No.1.
                                         Ms. Anjalli Bansal, Advocate for the
                                         Respondent No.2 Insurance Company.

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

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `6,65,000/- awarded by the Motor Accident Claims Tribunal(the Claims Tribunal) for the death of Bishan Swarup Rustagi who died in a motor vehicle accident which occurred on 29.01.2009.

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

3. Deceased Bishan Swarup Rustagi was aged 62 years. He was working as a Reader of Sanskrit in Ramjas College and was getting a gross salary of `51,352/-. The Claimants are the married brothers of the deceased.

4. The Claims Tribunal relied on the Supreme Court judgment in Madhya Pradesh State Road Transport Corporation v. Sudhakar & Ors., (1977) 3 SCC 64 and held that since the Appellants were married brothers, they were not financially dependent on the deceased and were entitled to 15% of the deceased's income towards loss to estate.

5. It is urged by the learned counsel for the Appellants that all the brothers were residing together as a family. The other brothers were running a small tea stall and had very meagre income therefrom. The deceased was supporting the Appellants and their family. Thus, it is urged that there was loss of financial dependency to the Appellants.

6. In the alternative, it is urged that even if it is assumed that the Appellants were not financially dependent, it is established that they were residing together as a family. The deceased being a Reader in Ramjas College Delhi University would not spend on him more than 50% of his income and thus 50% of his income would either be contributed to the Appellants's family or it would go to them as loss to estate.

7. On the other hand, Ms. Anjalli Bansal, learned counsel for the Respondent Insurance Company urges that the compensation awarded is just and reasonable and does not call for any interference.

8. The Appellants have proved the death certificate as Ex.P1 and the voter identity card issued by the Election Commission of India as Ex.P2. Both the documents contain the deceased's address as 73, Moti Bazar, Chandni Chowk, Delhi-110006 which is the address of the Appellants. Thus, it is established that the deceased and the Appellants were residing together but, at the same time, no cogent evidence was produced by the Appellants to show that they were financially dependent on the deceased. All the

Appellants except Appellant No.5 were married and had their own families.

9. Normally, only a sum of 15% is awarded as loss to estate when the legal heirs are not financially dependent as held in Sudhakar and a Division Bench judgment of Karnataka High Court in A. Manavalagan v. A. Krishnamurthy & Ors., 2005 ACJ 992. At the same time, it has to be noticed that the deceased was getting a very handsome salary of over `6,00,000/- per annum. He was a Teacher by profession and, in the circumstances, it would be difficult to say that he could spend more than 50% of his income on himself. Since the deceased was staying with his brothers, either he would be helping his brothers on month to month basis or would save that amount which would ultimately go to them as loss to estate.

10. The salary certificate Ex.P8 reveals the deceased's gross salary as `51,352/- which included payment of `3,712/- as Transport Allowance. The said sum has to be excluded while computing the loss to estate. Since the deceased was residing in a private accommodation, a sum of `9,789/- paid towards House Rent Allowance would be tax free. The compensation payable towards loss to estate would thus come to `17,94,380/- (`51,352/- - 3,712/- = `47,640/- x 12 = `5,71,680/- - `59,000/- (Income Tax) = `5,12,680/- x 50% x 7). On adding a sum of `25,000/- towards loss of love and affection and `10,000/- towards funeral expenses, the overall compensation thus comes to `18,29,380/-.

11. The compensation thus stands enhanced by `11,64,380/- which shall carry interest @ 7.5% per annum from the date of the filing of the Petition till its payment.

12. The enhanced compensation shall be payable to the Appellants in equal share. 50% of the enhanced compensation shall be held in fixed deposit for a period of two years. Rest shall be released on deposit.

13. The Respondent No.2 Tata AIG General Insurance Co. Ltd. is directed to deposit the enhanced compensation of `11,64,380/- along with interest with the Claims Tribunal within six weeks.

14. The Appeal is allowed in above terms.

15. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 20, 2012 pst