Delhi High Court
M D, Panbas vs Neelam & Ors. on 2 April, 2014
Author: Suresh Kait
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 2nd April, 2014
+ MAC.APP. 797/2013
M D, PANBAS ..... Appellant
Represented by: Mr.Kamal Sharma, Advocate.
Versus
NEELAM & ORS. ..... Respondents
Represented by: Mr.D.K.Sharma, Ms.Vandna
Sharma and Mr.Ikram,
Advocates for Respondent Nos.
1 to 3.
Mr. Vikram Singh and
Mr.Vinod Kumar, Advocates
for Respondent No.4.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is preferred against the impugned award
dated 29.04.2013, whereby the learned Tribunal has granted compensation
for an amount of Rs.9,35,652/- with interest at the rate of 9% per annum
from the date of filing of the DAR Petition till realization of the amount.
2. Mr.Kamal Sharma, learned counsel appearing on behalf of appellant
submits that at the time of the accident, the deceased was driving Mahendra
Champion, which is a commercial vehicle, whereas he was not possessing
the commercial licence, as has been admitted by PW1, Smt. Neelam, wife of
the deceased. In such an eventuality, the learned Tribunal ought to have
exonerated the appellant from any liability.
3. As per the DAR/claim petition, the respondent No.4 has been
prosecuted for causing the accident in question due to rash and negligent
driving of the offending vehicle, also disclosed that how and in what manner
the accident had taken place. The respondent No.4 was blamed specifically
for driving the offending vehicle, i.e., Bus bearing No.PB 05R 8853 without
blowing horn in a very high speed, rash and negligent manner. Due to
which it hit the Mahendra Champion, being driven by the deceased,
resultantly deceased Narender Singh Tomar died on the spot. However, the
appellant has not taken ground that the deceased had caused the accident and
that he himself was responsible for the accident in question.
4. Though learned counsel submits that this issue was argued before the
learned Tribunal, but the fact remains that neither there is any finding
recorded in the impugned award, if argued, nor there is any witness
examined by the appellant to this effect.
5. In view of above facts, there is no merit in this appeal.
6. At this stage, Mr. D.K. Sharma, learned counsel appearing on behalf
of the respondents/claimants submits that the Appellate Court has to see
whether the compensation granted by the learned Tribunal is just and fair. If
not, this Court has power to enhance the same.
7. Learned counsel submits that the deceased was a driver by profession.
Since the respondents/claimants could not prove the employment/ earning of
the deceased, therefore, the learned Tribunal has assessed his monthly
income as Rs.6,422/- applicable to an unskilled person at the prevalent time
as per Minimum Wages Act, 1948, but not added any amount in the actual
income of the deceased towards future prospects.
8. To strengthen his arguments, he has relied upon the case of Rajesh
and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, wherein the Full
Bench of the Apex Court 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.
9. Learned counsel further submits that the deceased died at the young
age of 39 years, left behind a young widow and two minor sons. Despite
that the learned Tribunal has granted Rs.10,000/- each on account of loss of
consortium and funeral charges, which is on a lower side.
10. Mr. Kamal Sharma, learned counsel appearing on behalf of the
appellant submits that since the respondents/claimants have failed to prove
the permanent employment of the deceased, therefore, keeping in view the
dictum of Sarla Verma & Ors. Vs. DTC & Anr., (2009) 6 SCC121, which
has been further affirmed by the Full Bench of the Apex Court in Reshma
Kumari & Ors. Vs. Madan Mohan & Anr. delivered in Civil Appeal No.
4646 of 2009 on 02.04.2013, the learned Tribunal has rightly not added any
amount in his income towards future prospects.
11. On the issue of non-pecuniary damages, Mr.Sharma, learned counsel
for the appellant submits that keeping in view the facts and circumstances of
the case, the learned Tribunal has granted substantial amount towards the
same.
12. As regards the issue of future prospects is concerned, the same has
been dealt with by this Court in the case bearing MAC. APP. No.846/2011
titled as ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh &
Ors., decided on 30.09.2013, while relying upon the dictum of the Apex
Court in Rajesh & Ors. (supra).
13. Therefore, keeping in view the settled position of law and the age of
the deceased, i.e., 39 years at the time of the accident, I add 50% in the
actual income of the deceased toward future prospects.
14. Admittedly, the deceased met his unfortunate tragic death at the
young age of 39 years, due to injuries sustained by him in the accident. The
respondent No.1/wife lost the association of her husband and all pleasures of
life, and respondent Nos. 2 and 3/minor sons have lost the love, affection,
care and guidance of their father as they were dependants on the deceased,
who was their sole bread earner and have lost the source of dependency.
15. Therefore, keeping into mind all the facts and circumstances of the
case and following the dictum of Rajesh & Ors. (supra), I enhance the
compensation on account of loss of consortium to Rs.1,00,000/- and for
funeral charges to Rs.25,000/-.
16. Accordingly, the compensation amount comes as under:
Sl. Heads of Compensation Compensation
No. Compensation granted by ld. granted by this
Tribunal Court
Pecuniary Damages:
1. Loss of dependency Rs.7,70,652/- Rs.11,55,960/-
2. Funeral charges Rs. 10,000/- Rs. 25,000/-
3. Loss of estate Rs. 25,000/- Rs. 25,000/-
4. Loss of consortium Rs. 10,000/- Rs.1,00,000/-
Non Pecuniary Damages:
5. Loss of love, company and
Rs.1,00,000/- Rs.1,00,000/-
affection etc.
6. Loss of gratuitous services Rs. 20,000/- Rs. 20,000/-
TOTAL Rs.9,35,652/- Rs.14,25,960/-
17. Resultantly, the total compensation is assessed as Rs.14,25,960/-.
18. Accordingly, an amount of Rs.4,90,308/- is enhanced (Rs.14,25,960/-
- Rs.9,35,652/-).
19. The enhanced compensation shall carry interest at the rate of 9% per
annum from the date of filing of the DAR Petition till its realization.
20. Accordingly, the appellant is directed to deposit the enhanced
compensation with up-to-date interest accrued thereon with the Registrar
General of this Court within a period of five weeks from today, failing
which, respondents/claimants shall be entitled for penal interest at the rate of
12% per annum on account of delayed payment.
21. On deposit, the Registrar General is directed to release the amount in
favour of the respondents/claimants in terms of the award dated 29.04.2013
passed by the learned Tribunal.
22. In view of the above, the appeal is disposed of.
SURESH KAIT, J.
APRIL 02, 2014
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