Delhi High Court
Parvesh & Ors. vs Dharmender & Ors. on 17 April, 2014
Author: Suresh Kait
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17th April, 2014
+ MAC.APP.No. 2/2013
PARVESH & ORS. ..... Appellants
Represented by: Ms.Alka Srivastava, Advocate.
Versus
DHARMENDER & ORS. ..... Respondents
Represented by: Mr.A.K.Soni, Advocate for
Respondent No.3/Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal is directed against the award dated 01.11.2011,
whereby the learned Tribunal has granted compensation for a sum of
Rs.13,02,400/- with interest at the rate of 9% per annum from the date of
filing of the claim petition till realization of the amount.
2. Vide the present appeal, the appellants are seeking enhancement of
the compensation, as noted above.
3. Ms.Alka Srivastava, learned counsel appearing on behalf of the
appellants submits that accident had taken place on 13.05.2005 and the
deceased died on 12.01.2008 while taking treatment from the hospital.
4. She further submits that the learned Tribunal has assessed the annual
income of the deceased as Rs.56,980/- on the basis of the Income Tax
Return (ITR) filed by him. At the time of accident, the deceased was 34
years of age, despite, learned Tribunal has not added any amount in his
actual income towards future prospects.
5. Ms.Srivastava submits that the deceased left behind young widow and
three minor children, however, the learned Tribunal has not granted any
amount for care and guidance of the minor children under the head of non-
pecuniary damages.
6. She also submits that the compensation granted towards loss of
consortium and funeral expenses, i.e., Rs.10,000/- each is also on a very
lower side.
7. On the other hand, Mr.A.K.Soni, learned counsel appearing on behalf
of the respondent No.3/Insurance Company submits that since the claimants
have failed to prove the avocation of the deceased and salary earned by him,
therefore, keeping in mind 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 the case of Reshma Kumari & Ors. Vs. Madan
Mohan & Anr. delivered in Civil Appeal No. 4646 of 2009 on 02.04.2013,
Ld. Tribunal has not added any amount in the actual income of the deceased
towards future prospects.
8. As regards the compensation under non-pecuniary losses is
concerned, learned counsel for the respondent No.3/Insurance Company
submits that it is the discretion of the court to award compensation on this
count, however, keeping in view the facts and circumstances of the case,
learned Tribunal has granted sufficient compensation under this head.
9. I have heard the learned counsel for the parties and have perused the
record.
10. As regards the issue of future prospects is concerned, this issue has
been considered 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 Rajesh and
Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563.
11. Therefore, keeping in view the settled position of law and that the
deceased was aged 34 years at the time of the accident, I grant 50% of the
actual income of the deceased towards future prospects.
12. So far as the compensation granted towards non-pecuniary losses is
concerned, the deceased died after about two years and eight month of the
accident due to the injuries received in the accident in question. He left
behind young widow and three minor children. Thus, the appellant
No.1/wife lost the association of her husband and enjoyment of life and the
appellant Nos. 2 to 4/minor children have lost the love, affection, care and
guidance of their father. The deceased was the sole bread earner of the
family and due to his death whole family members suffers an irreparable
loss from all sides.
13. Therefore, keeping in mind the facts and circumstances of the case
and the dictum of Rajesh & Ors. (supra), I grant Rs.1,00,000/- for loss of
consortium and Rs.25,000/- for funeral expenses.
14. As argued by learned counsel for the appellants that the deceased met
with the accident in question on 13.05.2005 and remained admitted in the
hospital till his death, i.e., 12.01.2008, hence, during the hospitalization of
more than two years and eight months, the deceased, his wife and minor
children had suffered mental agony, pain and sufferings and spent lot of
amount on his treatment. However, while granting compensation, the
learned Tribunal did not consider these facts.
15. Keeping in view the facts and circumstances of the case, I find force
in the submission of the learned counsel for the appellants/claimants.
Hence, a consolidated sum of Rs.1,00,000/- is granted towards pain and
sufferings suffered by the deceased and his family members as well.
16. Accordingly, the compensation amount comes as under:
Sl. Heads of Compensation Compensation
No. Compensation granted by ld. granted by this
Tribunal Court
1. Medical expenses Rs.4,67,000/- Rs.4,67,000/-
2. Loss of dependency Rs.6,75,400/- Rs.10,13,076/-
3. Special diet, attendant Rs.1,05,000/- Rs.1,05,000/-
& conveyance charges
4. Loss of love & Rs. 25,000/- Rs. 25,000/-
affection
5. Loss of consortium Rs. 10,000/- Rs.1,00,000/-
6. For funeral expenses Rs. 10,000/- Rs. 25,000/-
7. Loss of estate Rs. 10,000/- Rs. 10,000/-
8. Pain and suffering Nil Rs.1,00,000/-
TOTAL Rs.13,02,400/- Rs.18,45,076/-
Accordingly, the total compensation amount is assessed at
Rs.18,45,076/-.
17. Resultantly, the enhanced compensation comes to Rs.5,42,676/-
(Rs.18,45,076/- - Rs.13,02,400/-)
18. The enhanced compensation shall carry interest @ 9% per annum
from the date of filing of the claim petition till realization of the amount.
19. Accordingly, the respondent No.3/Insurance Company is directed to
deposit the enhanced compensation with proportionate interest with the
Registrar General of this Court within a period of six weeks from today,
failing which, appellants/claimants shall be entitled for penal interest at the
rate of 12% per annum on account of delayed payment.
20. On deposit, the Registrar General is directed to release the same in
favour of the appellants/claimants in terms of the order dated 01.11.2011
passed by the learned Tribunal on taking necessary steps by them.
21. In view of the above, the appeal is allowed.
SURESH KAIT, J.
APRIL 17, 2014
Sb/jg
