Delhi High Court
Leena Udayawar And Anr. vs Kapil Tyagi & Ors on 2 December, 2014
$~R-16A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 02.12.2014
+ MAC APP.707/2006
LEENA UDAYAWAR AND ANR. ..... Appellants
Through: Mr. Peeush Sharma, Advocate
versus
KAPIL TYAGI & ORS ..... Respondents
Through: Mr. Shoumik Mazumdar, Adv. for
R-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This appeal is filed by the appellants/claimants seeking
enhancement of compensation as granted by the award dated 08.06.2006.
The facts which lead to the filing of the claim petition before the MACT
are that the deceased Sunder Udyawar was going to Sadiq Nagar Market
along with his sister-in-law. He was hit by a scooter driven at a high speed
which collided with the deceased due to which he fell down and suffered
head injuries. He remained in the ICU, in coma for 21 days and eventually
passed away.
2. The issue revolves around the compensation granted by the
Tribunal. A total compensation of Rs. 5,37,000/- was awarded, details of
which are as follows:-
Loss of dependency Rs.4,80,000/-
Loss of love and affection Rs.25,000/-
and consortium
Funeral charges Rs.5,000/-
Conveyance charges Rs.5000/-
Medical bills Rs.21,438.74
Total Rs.5,36,438.74
(rounded to
Rs.5,37,000/-)
3. The Tribunal noted that the deceased was 58 years old. It assessed
the income of the deceased at Rs.1,80,000/- P.A. 1/3rd was deducted on
account of personal expenses of the deceased using the multiplier of 8, loss
of dependency was assessed at Rs.4,80,000/-.
4. Learned counsel appearing for the appellants submits that the
compensation awarded is on the lower side. He further submits that the
Tribunal has wrongly assessed the income of the deceased. He relied on
certain documents of the employer i.e. UNICEF to submit that the deceased
at the time of the accident was earning Rs.25,000/- per month and the
Tribunal has wrongly assessed the income at Rs.1,80,000/- per annum. He
next submits that the Tribunal also used the multiplier of 8 whereas,
keeping in view the age of the deceased the multiplier should be 9.
Further no future prospects were awarded while assessing loss of
dependency by the Tribunal. It is further urged that compensation under
non-pecuniary head is on the lower side and nothing has been paid for loss
of consortium separately .
5. Learned counsel for the appellants further submits that the Tribunal
has wrongly deducted income tax at 1/3rd of the income. It is urged that the
income tax would be 30% above the standard deduction from Rs.1,50,000/-
and not 1/3rd of the whole income.
6. Learned counsel appearing for the respondent No.2/ Insurance
Company has submitted that the deceased was not a regular employee and
the Tribunal has rightly assessed the income of the deceased. It is further
urged that the daughter of the deceased was 21 years old and not dependent
on the deceased. Hence wrong personal expenses have been deducted.
7. I will first deal with the issue of income of the deceased. PW2 -the
widow of the deceased states that the deceased was a Print Consultant
running his own consultancy agency called "ADFACES" at Hans Bhawan,
ITO, New Delhi and he was a Print Consultant to UNICEF, Lodhi Road.
8. An attempt was made to summon the concerned officer of the
UNICEF, who issued certificate showing the monthly income of the
deceased. UNICEF in response to the summons have sent a letter via UOI,
placing on record various documents. Number of contracts have been
placed on record. The last one shows the contract from 16.10.1997 to
15.05.1998. The total contract fees is Rs.1,75,00/- and payment is to be
made at Rs.25,000/- per month. There are six such contracts which are
continuously entered with effect from 15.10.2003 till 15.05.1998. The first
contract is for envisaged payment of Rs.10000/- per month. The details of
the contracts are as follows:-
S. No. Contract Date of Date of Total fee
No. commencement expiration
1. 93/1001 15.10.1993 14.04.1994 Rs.40,000/-
2. 94/1001 15.04.1994 14.12.1994 Rs.1,50,000/-
3. 94/1002 15.12.1994 31.08.1995 Rs.1,53,000/-
4. 95/1001 01.09.1995 15.04.1996 Rs.1,53,000/-
5. 96/0901 16.04.1996 15.01.1997 Rs.1,80,000/-
6. 97/0901 16.01.1997 15.10.1997 Rs.1,80,000/-
7. 97/0902 16.10.1997 15.05.1998 Rs.1,75,000/-
9. The last contract which was entered on 01.10.1997 also shows that the
contractor had to visit the office for 5.5 hours per day for five working
days.
10. Keeping into account the above nature of the contracts, in my view
the Tribunal has assessed the income of the deceased at Rs.1,80,000/- P.A.
on the lower side. The last two contracts show annual income of
Rs.2,60,000/- P.A. I modify the award and assess the income of the
deceased at Rs.20,000/- per month i.e. Rs.2,40,000/- P.A. This is done
keeping in view the fact that the job of the deceased is a contractual job
which has to be renewed roughly after six months.
11. On future prospect keeping in view the age of the deceased as 58
years in view of the judgment of the Hon'ble Supreme Court in Rajesh &
Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 I am persuaded to add 15
% as enhancement for payment by computing loss of dependency. The
agreement entered also shows that the income of the deceased has
increased over period of time.
12. On income tax there is no reason to disagree with the contention of
learned counsel for the appellants that the income tax would be 30% of the
income above Rs.1,50,000/-. Deducting Rs.1,50,000/- from 2,40,000/- gives
us the taxable income of Rs.90,000/-./ Hence 30% of Rs.90,000/- will be
Rs.27,000/-. Therefore, income for calculation of loss of dependency comes
to Rs.2,13,000/- (2,40,000/- - 27,000/-). Thus loss of dependency would be
Rs.14,69,700/- [(Rs.2,13,000/- + 15% - 1/3rd ) x 9].
13. Regarding the multiplier in terms of judgment of the Hon'ble
Supreme Court in the case titled Sarla Verma vs. DTC (2009) 6 SCC 129,
the multiplier would be 9 not 8 as taken by the Tribunal.
14. Coming to non pecuniary damages a perusal of the award shows that
the Tribunal has awarded Rs.25,000/- for loss of consortium and love and
affection. As the accident has taken place in 1998, I award a sum of
Rs.40,000/- as loss of consortium separately. The total compensation is
Rs.15,66,137.7, rounded off to Rs.15,66,140. The same works out as
follows:-
Loss of dependency Rs.14,69,700/-
Loss of love and affection Rs.25,000/-
Loss of consortium Rs.40,000/-
Funeral charges Rs.5000/-
Conveyance charges Rs.5000/-
Medical bills Rs.21437.74/-
Total Rs.15,66,137.7
15. The respondent No.3/the insurance company may deposit the
additional compensation before Registrar General of this court @ 6% per
annum from the date of filing of the present petition till passing of the award
within six weeks from today. On receipt, the same shall be released by the
Registrar General of this Court to the appellants proportionately in the same
proportion as directed by the Tribunal.
16. The appeal stands disposed of.
JAYANT NATH, J
DECEMBER 02, 2014
An
