Delhi High Court
Sh Brij Kishore & Anr. vs Sh Sandeep Kumar & Ors. on 25 October, 2013
Author: Suresh Kait
$~79
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25th October, 2013
+ MAC.APP. 965/2013
SH BRIJ KISHORE & ANR. ..... Appellants
Represented by: Mr. Manish Maini, Adv.
Versus
SH SANDEEP KUMAR & ORS. ..... Respondents
Represented by: Mr. Sameer Nandwani, Adv. for
R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Notice issued to respondent no. 3. Ld. Counsel named above accepts
notice on behalf of the said respondent.
2. With the consent of counsels for the parties, instant appeal is taken up
for final disposal.
3. Vide impugned award dated 08.07.2013, ld. Tribunal has granted
compensation for a sum of Rs.5,22,384/- with interest @ 7.5% per annum
from the date of filing of the Claim Petition till realization in favour of the
appellants.
4. The instant appeal has been filed for enhancement of the
compensation amount as noted above.
5. Ld. Counsel appearing on behalf of the appellants has argued the
instant appeal on two grounds; firstly, appellants could not prove the income
earned by the deceased, however, the educational qualification of the
deceased has been proved as matriculate. Accordingly, ld. Tribunal has
assessed monthly income of the deceased as Rs.3,953/- applicable to
matriculate at the time of the accident, i.e., 08.09.2009 in view of the
Minimum Wages Act. Ld. Counsel submits that minimum wages on
08.09.2009 for matriculate was Rs.4,401/- per month, however, the ld.
Tribunal has wrongly assessed the monthly income of the deceased as
Rs.3,953/- applicable to matriculate.
6. This Court finds force in the submissions of the learned counsel for
the appellants. Moreover, learned counsel appearing on behalf of the
respondent No.3/Insurance Company has fairly conceded to the same.
Accordingly, I consider the monthly income of the deceased as Rs.4,410/-
applicable to matriculate.
7. Secondly, ld. Counsel has argued that on the non-pecuniary loss, qua
loss of love and affection, ld. Tribunal has granted Rs.25,000/-, which is a
very meagre amount. On this issue, ld. Counsel for the appellant has relied
upon a case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE
563 wherein the Apex Court has held as under: -
20. The ratio of a decision of this Court, on a legal issue is a
precedent. But an observation made by this Court, mainly to
achieve uniformity and consistency on a socio-economic issue,
as contrasted from a legal principle, though a precedent, can
be, and in fact ought to be periodically revisited, as observed
in Santhosh Devi(supra). We may therefore, revisit the practice
of awarding compensation under conventional heads: loss of
consortium to the spouse, loss of love, care and guidance to
children and funeral expenses. It may be noted that the sum of
Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several
decades ago and having regard to inflation factor, the same
needs to be increased. In Sarla Verma's case (supra), it was
held that compensation for loss of consortium should be in the
range of Rs. 5,000/- to Rs. 10,000/-, In legal parlance,
'consortium' is the right of the spouse to the company, care,
help, comfort, guidance, society, solace, affection and sexual
relations with his or her mate. That non-pecuniary head of
damages has not been properly understood by our Courts. The
loss of companionship, love, care and protection, etc., the
spouse is entitled to get, has to be compensated appropriately.
The concept of non-pecuniary damage for loss of consortium is
one of the major heads of award of compensation in other parts
of the world more particularly in the United States of America,
Australia, etc. English Courts have also recognized the right of
a spouse to get compensation even during the period of
temporary disablement. By loss of consortium, the courts have
made an attempt to compensate the loss of spouse's affection,
comfort, solace, companionship, society, assistance, protection,
care and sexual relations during the future years. Unlike the
compensation awarded in other countries and other
jurisdictions, since the legal heirs are otherwise adequately
compensated for the pecuniary loss, it would not be proper to
award a major amount under this head. Hence, we are of the
view that it would only be just and reasonable that the courts
award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the
Tribunals have been quite frugal with regard to award of
compensation under the head 'Funeral Expenses'. The 'Price
Index', it is a fact has gone up in that regard also. The head
'Funeral Expenses' does not mean the fee paid in the
crematorium or fee paid for the use of space in the cemetery.
There are many other expenses in connection with funeral and,
if the deceased is follower of any particular religion, there are
several religious practices and conventions pursuant to death
in a family. All those are quite expensive. Therefore, we are of
the view that it will be just, fair and equitable, under the head
of 'Funeral Expenses', in the absence of evidence to the
contrary for higher expenses, to award at least an amount of
Rs. 25,000/-.
8. On the other hand, ld. Counsel appearing on behalf of the respondent /
insurance company has submitted that the ld. Tribunal has rightly granted
compensation towards non-pecuniary losses. On this issue, ld. Counsel has
relied upon a case of Sarla Verma Vs. DTC and Ors. 2009 (6) SCC 1217.
9. Keeping in view the dictum of Rajesh (Supra) the amount of
compensation towards loss of love and affection is increased from
Rs.25,000/- to Rs.1,00,000/-. Accordingly, the compensation comes as
under:
1. Loss of dependency : Rs.5,14,800/-
(Rs.3,300x12x13)
2. Loss of Love and affection : Rs.1,00,000/-
3. Loss of Estate : Rs. 10,000/-
4. For Funeral expenses : Rs. 25,000/-
Total Compensation : Rs.6,49,800/-
10. Hence the enhanced compensation comes to Rs.1,27,416/-
(Rs.6,49,800 - Rs.5,22,384)
11. The appellants are entitled for the enhanced compensation amount
along with interest @ 7.5% from the date of filing of the petition till
realization.
12. Consequently, respondent no. 3 / insurance company is directed
deposit the enhanced compensation with interest within five weeks from
today with the Registrar General of this court, failing which respondent no. 3
/ insurance company is also liable to pay interest @12% on delayed
payment.
13. On deposit the enhanced compensation with interest, the Registrar
General is directed to release the same in favour of the appellants / claimants
on taking steps.
14. Instant appeal stands disposed of on above terms.
SURESH KAIT, J
OCTOBER 25, 2013
Jg
