Jasvinder Singh & Ors vs Lovkush Giri & Ors
2014 Latest Caselaw 6372 Del

$~A-11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 2.12.2014
+     MAC.APP. 884/2011
      JASVINDER SINGH & ORS               ..... Appellants
                      Through Mr.Rajesh Mahajan, ASC with
                              Ms.Shinjan Jain, Advocate
               versus
      LOVKUSH GIRI & ORS                  ..... Respondents
                      Through Mr.K.L.Nandwani, Advocate for R-3.
                              Mr.J.S.Arora, Advocate for R-4.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present appeal the appellant seeks to impugn the Award dated 18.3.2011 and seeks enhancement of compensation.

2. The brief facts are that on 03.10.2006 Shri Harjeet Singh while working in front of import and export examination area, ICD, Tughlakadbad, Okhla Phase-I, New Delhi was hit by a crane driven by respondent No.1. On account of the accident he suffered grievous injuries and succumbed to the same.

3. Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of respondent No.1.

4. On compensation a total compensation of Rs.9,50,000/- was awarded, Loss of dependency of Rs.9,00,000/- was awarded, Rs.5,000/- towards funeral charges, Rs.30,000/- towards love and affection, Rs.5,000/- towards loss of estate and Rs.10,000/- was awarded towards loss of consortium.

5. Learned counsel appearing for the appellants/claimants seeks enhancement of the compensation. Various submissions have been made on this count. It is firstly submitted that the Tribunal has wrongly taken the age of the deceased as 36 years whereas he was 32 years old. Reliance is placed on the post-mortem report. Hence, it is urged that the appropriate multiplier should have been used is 16 and not 15 as used by the Tribunal. It is next urged that the Tribunal has wrongly deducted 1/3rd for personal expenses of the deceased inasmuch as there were four dependents. 1/4th should have been deducted for personal expenses of the deceased. The next submission pertains to future prospects. The Tribunal assessed the income of the deceased at Rs.7,500/- and did not increase the same for future prospects by 50% as per the settled law.

6. It is next urged that the evidence on record shows that the deceased was drawing a salary of Rs. 10,500/- per month which included Rs.2,050/- as conveyance and Rs.950/- for other allowances. It is urged that the Tribunal has wrongly discarded the conveyance and other allowances and accepted the salary of the deceased based on the basic salary of Rs.7,500/- per month.

7. The next submission pertains to compensation for non-pecuniary damages under the heads of loss of love and affection, loss of consortium and loss of estate. Lastly, it is submitted that the Tribunal has awarded interest @ 7.5% per annum from the date of filing of the claim petition which is on the lower side. It is urged that the interest @ 9% p.a. should have been awarded.

8. Coming to the first submission of the learned counsel for the appellants pertaining to the age of the deceased. The post-mortem report issued by Safdarjung Hospital Ex.PW1/B shows the age of the deceased as 32 years. The

Tribunal had taken the age of 36 years based on the MLC. I accept the contention of the appellants and based on the post-mortem I take the age as 32 years. Hence, the appropriate multiplier would be of 16 while computing of loss of dependency.

9. Coming to the submission pertaining to deductions on account of personal expenses of the deceased. The Tribunal has while computing loss of dependency deducted 1/3rd.

10. A perusal of the claim petitions shows that there are four claimants including the father, the mother, the brother and the widow of the deceased. Normally, a father would not be considered to be financially dependent upon the son unless there is evidence to the contrary placed on record. A perusal of the evidence of PW-1, the father of the deceased Sh.Jasvinder Singh, by way of an affidavit does not even mention a sentence stating that he was financially dependent upon the deceased or would be unable to earn his livelihood. Accordingly, the father cannot be considered to be dependent upon the deceased. Regarding the brother of the deceased, there is no clarity regarding the age of the brother, namely, appellant No.3 Manjeet Singh. In all probability even if he is not yet earning, he would be dependent upon the father. In my opinion, there would be only two dependents of the deceased, namely, the mother and the widow. Accordingly, the Tribunal has rightly deducted 1/3rd of the income of the deceased for personal expenses of the deceased keeping in view the judgment of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121.

11. On future prospects, I rely upon the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54. For

purposes of computing loss of dependency, the assessed income should have been increased by 50% inasmuch as the deceased at the time of the death was 32 years old.

12. Coming to the issue of allowances i.e. as to whether the Tribunal has rightly deducted the entire allowances and computed the salary of the deceased at Rs.7,500/- per month based on the basic salary. The salary certificate issued by the employer, namely, Guruphej Singh Rekhi who is shown to be a License Custom House Agent acknowledges that the salary of Rs.10,500/- per month was being paid (Ex.PW1/G). Sh.Guruphej Singh Rekhi has also entered the witness box as PW-2. In his evidence by way of affidavit he states that the gross salary of Rs.10,500/- was being paid; Rs.2050/- was for conveyance, Rs.950/- was for other allowances and the basic salary of the deceased was Rs.7,500/- per month. In the cross-examination learned counsel for the insurance company did not ask any question regarding the purpose and usage of the allowances.

13. The Supreme Court in the case of National Insurance Company Ltd. vs. Indira Srivastava and Ors., AIR 2008 SC 845 in para 8 held as follows:-

"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monitory terms."

14. In the light of the above legal position and the evidence placed on record, it is clear that the conveyance allowance and other allowances were cash in

hand received by the deceased and his family and would have to be counted as part of the salary.

15. In the light of the evidence on record, I accept the salary of the deceased as Rs.10,500/- per month for purposes of computation of loss of dependency. Loss of dependency would hence be now calculated as Rs.20,16,000/- [(1,26,000 + 50%) -1/3 x 16].

16. On loss of love and affection, loss of consortium and loss of estate, the Tribunal awarded Rs.30,000/- towards loss of love and affection, Rs.5000/- towards loss of estate and Rs. 10,000/- towards loss of consortium. As far as loss of love and affection is concerned, the only dependent is the mother. In the light of the facts and circumstances of this case award of Rs.30,000/- for loss of love and affection appears to be just and reasonable.

17. On loss of consortium, it is on record that as per the evidence of PW-1 appellant No.4, the wife of the deceased has left her matrimonial home after one and half month after her marriage and was residing with her parents before the death of their son. In the light of these facts, the award of Rs.10,000/- in the facts and circumstances of the present case as loss of consortiums is just and proper. There is also no reason to interfere with the award of loss of estate at Rs.5.000/- in the facts and circumstances of the present case.

18. On the issue of interest submitted by the learned counsel for the appellant, the Tribunal has awarded @ 7.5% p.a. from the date of filing of the claim petition. The award of interest being based on the discretion of the Tribunal, I see no reason to interfere with the said rate of interest.

19. Total compensation will now work out as Rs.20,61,000/-. Break-up of which reads as under:-

           Loss of dependency           20,16,000/-
          Loss of love and affection     30,000/-
          Loss of consortium             10,000/-
          Loss of estate                  5,000/-
          Total                        20,61,000/-

20. The additional compensation as per this order be deposited by respondent No.3/the Insurance Company along with interest @ 7.5% from the date of filing of the claim petition till deposit in court before the Registrar General of this Court within six weeks from today. On receipt of the same, the Registrar General may release the same proportionately as directed in the award to the claimants.

21. The appeal stands disposed of.

JAYANT NATH, J DECEMBER 02, 2014 rb