Delhi High Court
Lalitha Mathur & Ors. vs Anil Kumar & Ors. on 3 December, 2013
Author: Suresh Kait
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 3rd December, 2013
+ MAC.APP. 1260/2012
LALITHA MATHUR & ORS. ..... Appellants
Represented by: Mr. Manish Maini, Adv.
versus
ANIL KUMAR & ORS. ..... Respondents
Represented by: Ms. Archana Gaur, Adv.
for R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the impugned award
dated 27.07.2012, whereby ld. Tribunal has granted compensation as under:
"Loss of Dependency : Rs.7,30,368/-
Funeral Expenses : Rs. 5,000/-
Loss of Estate : Rs. 5,000/-
Loss of Consortium : Rs. 5,000/-
Loss of Love and Affection : Rs. 5,000/-
Total : Rs.7,50,368/-"
Interest @ 9% per annum from the date of filing of the petition till
realization has also been awarded by the ld. Tribunal.
2. Instant appeal has been filed for enhancement of the award noted
above.
3. Ld. Counsel appearing on behalf of the appellant has argued that on
the date of accident, i.e. on 24.09.2009, the deceased Kamal Mathur was 32
years old, despite that ld. Tribunal has added 30% towards future prospects.
4. To strengthen his arguments on this issue, ld. Counsel for the
appellants has relied upon case the case of Rajesh and Ors. Vs. Rajbir
Singh and Ors. 2013 (6) SCALE 563 wherein the Apex Court has held as
under:
"11. Since, the Court in Santosh Devi's case (supra)
actually intended to follow the principle in the case of
salaried persons as laid in Sarla Verma's case (supra) and
to make it applicable also to the self-employed and persons
on fixed wages, it is clarified that the increase in the case of
those groups is not 30% always; it will also have a
reference to the age. In other words, in the case of self-
employed or persons with fixed wages, in case, the deceased
victim was below 40 years, there must be an addition of
50% to the actual income of the deceased while computing
future prospects. Needless to say that the actual income
should be income after paying the tax, if any. Addition
should be 30% in case the deceased was in the age group of
40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in
the case of those above 50 years, there shall be no addition.
Having regard to the fact that in the case of those self-
employed or on fixed wages, where there is normally no age
of superannuation, we are of the view that it will only be
just and equitable to provide an addition of 15% in the case
where the victim is between the age group of 50 to 60 years
so as to make the compensation just, equitable, fair and
reasonable. There shall normally be no addition
thereafter."
5. Ld. Counsel further submitted that PW1, Smt. Lalita Mathur, wife of
the deceased deposed that her father in law was unemployed and dependent
on the deceased. Thus, there were four dependants, i.e., wife, child and
parents however ld. Tribunal has deducted 1/3rd towards personal expenses.
Ld. Counsel submitted that keeping the dependants into view, the learned
Tribunal ought to have deducted 1/4th towards personal expenses instead of
1/3rd.
6. He further argued that PW1, Lalita Mathur, wife of the deceased has
proved the salary certificate of the deceased as Ex.PW1/1, whereby it is
proved that deceased was getting a sum of Rs.8,000/- per month from his
employer. However, ld. Tribunal has assessed only Rs.4,380/- per month as
monthly salary of the deceased as per the Minimum Wages Act applicable to
the skilled persons at that time.
7. Ld. Counsel further argued that on the non-pecuniary heads, ld.
Tribunal has granted a very meagre amount, i.e., Rs.5,000/- each towards
loss of love and affection, loss of consortium, loss of estate and towards
funeral expenses. He submitted that for just and fair compensation awarded
amount may be enhanced on account of non-pecuniary heads.
8. On the other hand, ld. Counsel appearing on behalf of the respondent
no. 3 / insurance company submitted that so far as the future prospects is
concerned, the claimants failed to prove the employment of the deceased
was of permanent in nature. Therefore, keeping in view the age of the
deceased as 32 years at the time of accident, ld. Tribunal has rightly added
30% towards future prospects keeping in view the dictum of Sarla Verma
Vs. DTC and Ors. 2009 (6) SCC 121, which has been affirmed by the Full
Bench of the Apex Court in case of Reshma Kumari and Ors. (2013) 9 SCC
65 v. Madan Mohan & Anr.
9. On the issue of deduction towards personal expenses, ld. Counsel
submitted that there are two other earning brothers of the deceased,
therefore, ld. Tribunal has rightly not considered the father of the deceased
as dependent upon him. Hence, ld. Tribunal has deducted 1/3rd towards
personal expenses keeping in view three dependants, i.e., wife, child and
mother.
10. On the issue of salary, ld. Counsel submits that though the salary
certificate has been placed on record as Ex.PW1/1, however the same has
not been proved as no witness from the employer of the deceased has been
examined by the appellants. Therefore, in such eventuality, ld. Tribunal has
rightly considered the salary of the deceased as Rs.4,380/- per month as per
the Minimum Wages Act applicable at that time to a skilled person.
11. On non-pecuniary heads, ld. Counsel has fairly conceded that this may
be reasonably enhanced as the ld. Tribunal has granted the compensation on
a lower side.
12. The issue of future prospects is no more res-integra as has been
decided by the Full Bench of the Apex Court in the case of Rajesh (Supra)
and same has been followed by this Court in the case of MACA
No.846/2011 titled as ICICI Lombard General Insurance Co. Ltd. Vs.
Angrej Singh & Ors. Therefore, keeping in view the age of the deceased as
32 years on the date of accident, I enhance 50% from 30% towards future
prospects.
13. As the issue of deduction towards personal expenses are concerned,
admittedly, the deceased has two more earning brothers. Therefore, father
of the deceased cannot be considered as the dependent upon him. Thus, ld.
Tribunal has rightly not considered the father of the deceased as a
dependent.
14. With regard to the issue of monthly salary being considered as per the
Minimum Wages Act, despite PW1 having proved the salary certificate as
Ex.PW1/1, the admitted fact is that the appellants/claimants failed to
examine any witness to prove the said certificate. Therefore, mere issuance
of certificate does not serve the purpose, however, that has to be proved as
per the Evidence Act. In such eventuality, ld. Tribunal has rightly assessed
the income of the deceased as Rs.4,380/- per month as per the Minimum
Wages Act prevailing at that time.
15. So far as the issue of non-pecuniary heads is concerned, this Court has
been consistently considering the same keeping in view the dictum of
Rajesh (Supra). Therefore, I award Rs.1,00,000/- towards loss of love and
affection, Rs.1,00,000/- towards of loss of consortium, Rs.10,000/- towards
loss of estate and Rs.25,000/- towards funeral expenses. Accordingly, the
compensation comes as under:
Heads of Compensation granted Compensation
compensation by ld. Tribunal granted by this
Court.
Loss of dependency Rs.7,30,368/- Rs.8,35,200/-
Funeral expenses Rs.5,000/- Rs.25,000/-
Loss of Estate Rs.5,000/- Rs.10,000/-
Loss of Consortium Rs.5,000/- Rs.1,00,000/-
Loss of Love and Rs.5,000/- Rs.1,00,000/-
Affection
TOTAL Rs.7,50,368/- Rs.10,70,200/-
16. Accordingly, the enhanced compensation comes to Rs.3,19,832/-
(Rs.10,70,200 - Rs.7,50,368).
17. Consequently, respondent / insurance company is directed to deposit
the enhanced compensation with interest @ 9% from the date of filing of the
petition till realization with Registrar General of this Court within five
weeks from today, failing which, the appellants / claimants shall be entitled
for 12% interest on delayed payment.
18. On deposit, the Registrar General is directed to the release the
enhanced compensation with interest in favour of the appellants.
19. Instant appeal is allowed on the above terms.
SURESH KAIT, J
DECEMBER 03, 2013
jg
