New India Assurance Co Ltd vs Guddi & Ors
2014 Latest Caselaw 6387 Del

$~A-7
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of decision: 2.12.2014
+     MAC.APP. 376/2011
      NEW INDIA ASSURANCE CO LTD      ..... Appellant
                   Through  Mr.K.L.Nandwani, Advocate

                          versus

      GUDDI & ORS                             ..... Respondent
                          Through        Mr.S.N.Parashar, Adv. for R-5 and
                                         R-6

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant/insurance company impugning the Award dated 14.12.2010. The brief facts are that on 17.11.2008 the deceased Bachan Singh was crossing the road. He was hit by a mini bus driven at a fast speed in a rash and negligent manner.

2. The controversy centres around the compensation amount fixed by the Tribunal. This was fixed at Rs.15,72,000/- details of which are as follows:-

             Compensation for loss       15,12,000/-
             of dependency
             Compensation for the        10,000/-
             loss of estate
             Compensation          for   10,000/-
             funeral expenses
             Compensation for loss       40,000/-
             of love and affection


             Total                     15,72,000/-

3. A perusal of the Award shows that the Tribunal assessed the age of the deceased as 45 years. The Tribunal relying upon the evidence of PW-1 Smt.Guddi the widow of the deceased, the salary certificate issued by O.P.Motor Transport Company showing an income of Rs.8,000/- per month and the driving license of the deceased which was on record assessed the income at Rs.8,000/- per month. The Tribunal also added 50% for future prospects on the assessed salary and computed loss of dependency using a multiplier of 14. 1/4th was deducted for personal expenses. Loss of dependency was fixed at Rs.15,12,000/-.

4. Learned counsel appearing for the appellant submits that the compensation awarded is on the higher side. He submits that the minimum wages for a skilled worker at the relevant time was Rs.4,107/-. The claimant did not summon the employer or any record from the employer and merely a salary certificate has been relied upon to assess that the deceased was earning Rs.8,000/- per month. It is further urged that the deceased even as per the Award was 45 years old and as per the judgment of the Supreme Court in Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 future prospects can only be given at 30% if at all to be given and hence the Tribunal wrongly awarded 50% future prospects.

5. PW-1 in her evidence states that the deceased was working as a driver with the O.P.Motor Transport Company for eight years earning Rs.8,000/- per month. The salary certificate issued by the said O.P.Motor Transport Company, 66, Railway Feeder Road, Ghaziabad, U.P. which also states that Bachan Singh

was working as a driver from March 2000 till December 2008 and has been paid a salary of Rs.8,000/- (Ex.PW1/2). The claimant did not summon the employer or any record from the employer to properly prove the salary received by the deceased.

6. In my view the Tribunal erred in fixing the salary based only on the salary certificate issued by O.P.Motor Transport company which also appears to be a proprietorship concern. It is a matter of fact that the drivers normally do earn more than what are the prescribed minimum wages. The Supreme Court in the case of Kala Devi & Ors. vs Bhagwan Das Chauhan, 2014 12 SCALE 513 which was a case of a driver working in Himachal Pradesh noted that an average driver in Himachal Pradesh earn Rs.9,000/- per month even under Minimum Wages Act. In that case the Tribunal had assessed the income at Rs.3,000/- per month. That was a case in which the driver was driving in the mountaineering region and required more skills.

7. In the facts and circumstances of this case, I assess the salary of the deceased at Rs.6,000/- per month.

8. The deceased was under 45 years of age. Keeping in view the ratio of the judgment of the Supreme Court in Rajesh & Ors. vs. Rajbir Singh & Ors.(supra) enhancement of the salary would be 30% for future prospects.

9. Loss of dependency would hence be Rs.9,82,800/-[(6,000 + 30/100 -1/4) x 12 x 14]. The total compensation would hence read as follows:-

Compensation for loss 9,82,800/-

of dependency Compensation for the 10,000/-

             loss of estate
             Compensation      for 10,000/-
             funeral expenses

              Compensation for loss 40,000/-
             of love and affection
             Total                 10,42,800/-

10. As per interim orders of this Court dated 3.5.2011 the entire award amount with accumulated interest was deposited in Court and 50% was directed to be released. The balance amount with accumulated proportionate interest be released to the claimants proportionately in the same manner as directed by the Tribunal.

11. Statutory amount, if any, deposited by the appellant at the time of filing the appeal be released to the claimants.

12. Appeal stands disposed of.

13. A perusal of the record shows that none has been appearing for respondents No.1 to 4 for the last several dates of hearing.

14. A copy of this order be sent to the claimants without filing of process fee.

JAYANT NATH, J DECEMBER 02, 2014 n