Delhi High Court
National Insurance Company Ltd vs Vijay Kishan Barik & Ors. on 24 January, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 23rd January, 2013
Pronounced on: 24th January, 2013
+ MAC.APP. 911/2012
NATIONAL INSURANCE COMPANY LTD ... Appellant
Through: Ms.Namita Sharma & Ms.Preeti
Bhardwaj, Advocates
versus
VIJAY KISHAN BARIK & ORS. ..... Respondents
Through: Mr.Navneet Goyal & Mr.Pawan Kumar,
Advocates
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. This Appeal is directed against a judgment dated 10.05.2012 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a
compensation of `6,83,300/- was awarded in favour of Respondents
No.1 to 4 for the death of Arti, an unmarried lady, who died in a motor
vehicle accident which occurred on 07.03.2011.
2. The finding on negligence is not challenged by the Appellant Insurance
Company; thus the same has attained finality.
3. The only ground of challenge is that Respondents No.1 to 4 were not
financially dependent on deceased Arti, and therefore, the Respondents
being the legal representatives (Class-II heirs) were only entitled to a
statutory compensation under Section 140 of the Motor Vehicle Act,
1988 ('the Act').
4. During inquiry before the Claims Tribunal, it was established that
deceased Arti was working as a Court Attendant in Delhi High Court and
was getting a salary of `17,552/- including a sum of `2,320/- as Transport
Allowance and `500/- as washing allowance. Reba Barik the deceased's
sister entered into witness box as PW-1 and she testified that her deceased
sister was unmarried; her parents had pre-deceased her; she had two
sisters and one surviving brother; eldest brother had expired leaving
behind a widow and five children. She deposed that the deceased used to
provide financial help to them and they were dependents on her earnings.
This part of PW-1's testimony was not challenged in cross-examination
rather in the cross-examination of PW-1 it was illustrated that PW-1's
husband was mentally retarded and was not able to earn his livelihood.
She denied the suggestion that her deceased sister was not rendering any
financial help to them. She admitted that she was a nominee of her
deceased sister in her (deceased's) service book. She admitted that her
nephew Deepu Barik was also working in Delhi High Court as a Court
Attendant and was getting his salary. She stated that their younger sister
Saraswati Barik was unmarried and was living with deceased Arti in
Delhi.
5. The Claims Tribunal dealt with the quantum of compensation in Paras 7
to 12 of the impugned judgment, which are extracted hereunder:-
7. It has been held in a catena of judgments that emphasis in
cases of personal injury and fatal accident should be on
awarding substantial, just and fair compensation and not a
token amount. General principle in calculating such sum of
compensation, should be so as to put the injured or legal heirs
of a deceased in case of fatal accident, in the same position as
he would have been, if accident had not taken place. The
amount of compensation no doubt cannot bring back the dead
but it certainly helps the LR's and dependents to live life with
dignity and comfort as they were living during the lifetime of
the deceased. The amount of compensation is awarded on the
basis of age, the earning capacity and other liabilities of the
deceased. The appropriate method of calculating compensation
in fatal cases is multiplier method. The Hon'ble Supreme Court
in plethora of judgments has laid down that in India, the
multiplier method is proper for calculation of compensation.
8. In order to calculate the amount of compensation, the sum is
required to be considered under the various head:
(a) LOSS OF ESTATE:
9. PW1 Ms. Reba Barik has stated that the deceased had been
working as Court Attendant and getting a salary of Rs. 18,000/-
p. m. In this case salary slip of the deceased has been filed as
per which her salary in the month of February, 2011 was Rs.
17,552/- inclusive of Rs.2320/as Transport Allowance and Rs.
500- /as washing allowance which amount is required to be
deducted for calculating the loss of estate. In the form of
nomination she has nominated Ms. Reba Barik, PW1 as
nominee. As per the MLC the deceased was 52 years of age. In
this case the identity card of the deceased has also been filed
wherein her date of birth has been shows as 01.07.1958. Thus,
as on the date of accident she was 52 years of age. PW1 has
stated that the deceased was unmarried and her parents had
predeceased her. She had two brothers and two sisters. Her
eldest brother is not alive and survived by his wife and five
children. She stated that the deceased used to provide financial
help to them and they were dependent on her earnings.
10. Although the petitioners are not the Class I legal heirs of
the deceased but they are her brother, sisters and LRs of
predeceased brother. It was held in the case of Manjuri Bera
Vs. Oriental Insurance Co. Ltd. 2007 ACJ 1279 that even if
there is no loss of dependency, the claimant if he or she is a
legal representative will be entitled to compensation. In view of
the case law supra, I am of the view that the petitioners being
legal representatives are entitled to inherit the Estate of the
deceased.
11. For calculating the loss of Estate, the saving of the
deceased in the present case is taken as 1/3rd of her income.
Thus, for the calculation of Loss of Estate, the income of the
deceased would be taken as Rs. 14,732/. Taking a multiplier of
"11" as per Sarla Verma Vs. DTC 2009 (6) Scale 129, the
Loss of Estate is calculated as 14,732 x 12 x 1/3rd x 11 = Rs.
6,48,208/- which is rounded off to Rs. 6,48,300/.
12. I therefore, award a sum of Rs. 6,48,300/- to the petitioners
towards "Loss of Estate"
6. It is important to note that although PW-1 deposed about the financial
assistance being rendered by the deceased to her and other family
members, but the extent of that help was not stated. It is, however, proved
that Saraswati Barik one of the sisters of the deceased lived with the
deceased in Delhi. It is also established that the deceased was unmarried
and was getting a salary of about `18,000/- per month.
7. In the absence of any evidence being produced by the Respondents with
regard to the extent of financial assistance being rendered by the
deceased, it can be assumed that she would be helping her brothers and
sisters only out of her surplus income. As stated earlier, the deceased was
getting a gross salary of `17,552/-, the Claims Tribunal deducted a sum
of `2,320/- and `500/- which were being paid to the deceased towards
Transport Allowance and washing allowance, and awarded one third of
the deceased income towards loss to estate. The deceased was employed
only as a Court Attendant in Delhi High Court, she had no liability and
thus, it can be assumed that she must have been saving at least one third
of her income and rendering the assistance of the said amount to her
brothers and sisters particularly her unmarried sister Saraswati Barik.
Thus, the award of compensation to the extent, that is, one third of
deceased's income as loss to estate cannot be faulted.
8. The Appeal, therefore, has to fail; the same is accordingly dismissed.
9. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
10. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 24, 2013
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