Delhi High Court
M/S The New India Assurance Co Ltd vs Bishan Mahto & Ors on 12 December, 2014
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:12.12.2014
+ MAC.APP. 1129/2014
M/S THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through:Mr.D.D.Singh with Mr.Navdeep Singh and
Mr.Ankit Mahajan, Advocates.
versus
BISHAN MAHTO & ORS ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 12.12.2014
JAYANT NATH, J. (ORAL)
CM No.20397/2014
Exemption is allowed, subject to all just exceptions.
The application stands disposed of.
MAC APPL. 1129/2014 and CM No.20396/2014
1. By the present appeal the appellant seeks to impugn the Award dated
1st October, 2014.
2. The brief facts are that the deceased Meena Kumari on 2nd December,
2009 was standing at Shakar Pur Bus Stand. Suddenly, a tractor which was
driven in rash and negligent manner, hit her. She was taken to LBS Hospital
where she was declared as „brought dead‟.
3. The controversy centres around the compensation awarded to the
claimants. The Tribunal awarded a total compensation of Rs.19,26,120/-
calculated as follows:
S.No. On account of Amount (Rs.)
1. Loss of dependency Rs.17,91,120.00
2. Loss of Love and affection Rs.1,00,000.00
3. Loss of Estate Rs. 10,000.00
4. Funeral Expenses Rs. 25,000.00
Total = Rs.19,26,120.00
4. Based on the evidence of PW2 Shri Ashish Bathla, Senior Executive HR,
ITQ Consultancy, the employer of the deceased and the Annual Salary Slip
Ex.PW2/6 and Monthly Salary Slips with effect from November,2007 to
December, 2009 Ex.PW2/7, the Tribunal assessed the salary of the deceased
as Rs.11,706/- per month. To this amount, the Tribunal added 50% on
account of future prospect. Half of the income was deducted towards
personal and living expenses as the deceased was unmarried. Based on the
age of the deceased, the Tribunal used a multiplier of 17 and assessed the
loss of dependency at Rs.17,91,120/-.
5. Learned counsel appearing for the appellant impugns the quantum of
compensation as per the award. He submits that a perusal of the salary slip
of the deceased issued by ITQ Consultancy Pvt. Ltd. would show that she
was receiving a Special Allowance of Rs.4881/- per month. He submits that
this allowance cannot form a part of the wages and has to be deducted from
the assessed income of the deceased. He further submits that the Tribunal
has wrongly awarded future prospects. The next submission is that the
multiplier used is erroneous as the multiplier in the case of an unmarried
person has to be based on the age of the claimants i.e. the father/mother and
not the age of the deceased.
6. As far as the issue of income is concerned, a perusal of the Salary Slip
which is now filed in the Court, learned counsel for the appellant shows the
break up of the income of the deceased as follows:-
Basic 4550
HRA 2275
Special allowance 4,881/-
Total Payroll Salary(A) 11,706/-
7. The challenge is to inclusion of Special Allowance of Rs.4881/-. The
Supreme Court in the case of National Insurance Company Ltd. vs. Indira
Srivastava AIR 2008 SC 545 in paragraph 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."
8. The issue would be as to whether the above allowance, namely, Special
Allowance would be beneficial to the members of the entire family.
9. A perusal of the Award shows that PW2 has placed on record the Annual
Salary Slip as Ex.PW2/6 and Monthly Salary Slip for the period w.e.f.
November, 2007 to December, 2009 as Ex.PW2/7. Admittedly, the Special
Allowance was being paid each month and that is why the income was
assessed at Rs.11,706/- per month. It is an income in the hands of the
deceased/her family.
10. In the light of the legal position and the facts there is no merit in the
said contention of the learned counsel for the appellant. The income has
been rightly assessed by the Tribunal at Rs.11,706/- of the deceased.
11. Coming to the issue of future prospects. I can take judicial note of the
fact that minimum wages for a matriculate in 2002 were Rs.3115.40/- P.M.
and in 2012 were Rs.8528/- P.M. It is obvious that the prescribed minimum
wages have more than doubled in ten years.
12. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54
the Supreme Court held that in the case of self employed or those on fixed
wages, when the victim is below 40 years an addition of 50% should be
made in the wages for the purpose of computing loss of future earnings.
13. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505,
the Supreme Court was of the view that in the case of self employed or those
engaged on fixed wages, 30% increase in income over period of time would
be appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ
1441, the Supreme Court in the case of injury to a student who was studying
in Class XI aged 16 years had awarded 50% increase for future prospects.
14. Further, this court in the case of ICICI Lombard General Insurance
Company vs. Angrej Singh & Ors. in MAC APP. 846/2011 in judgment
dated 30.09.2013 had gone into this issue and had noted the judgments of the
Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi
Transport Corporation and Anr.(supra), Reshma Kumari & Ors. vs.
Madan Mohan & Anr.(supra), Rajesh & Ors. vs. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and other judgments and concluded that future prospects
should be given to persons who are self-employed or on fixed wages.
15. I may further note that this court in MAC APP.761/2012 Rakesh and
Ors. vs. National Insurance Co. Ltd. and Ors. vide judgment dated
02.04.2014 had in a case where the deceased was 24 years old added 50% to
the income towards future prospects for computing loss of dependency
based on the judgment of the Supreme Court in the case of Rajesh & Ors.
vs. Rajbir Singh & Ors.(supra). Against the said judgment the appellant had
filed an SLP before the Supreme Court. The said SLP No.5612/2014 was
dismissed by the Supreme Court on 10.10.2014.
16. Hence, there is no error committed by the Tribunal in enhancing the
income based on future prospects.
17. On the issue of multiplier being used for the calculation of loss of
dependency, reference may be had to the judgment of this Court in the case
of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors.
MANU/DE/0715/2014; 2014 (142) DRJ 303 this Court held that the
multiplier has to be based on the age of the deceased. That was a case where
the age of the deceased was 39 years.
18. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram
Meena & Ors. (supra) relied on the judgments of the Supreme Court in case
of M. Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042
which judgment further relying on the judgment of the Supreme Court in the
case Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors.
MANU/SC/0537/2012 held as follows:-
"15. The selection of multiplier is based on the age of the
deceased and not on the basis of the age of the dependants.
There may be a number of dependants of the deceased whose
age may be different and, therefore, the age of the dependants
has no nexus with the computation of compensation."
19. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case
where the deceased was a bachelor of 24 years of age and the Supreme
Court held that the selection of the multiplier is based on the age of the
deceased and not the age of the dependants. Further, in the case of Amrit
Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the
deceased was a bachelor aged 26 years and the Court applied the multiplier
of 17. In view of the said judgment passed by this Court, following the
judgments of the Supreme Court, the Tribunal erred in not taking the age of
the deceased to consider the appropriate multiplier.
20. I may further note that Rakesh and Ors. vs. National Insurance Co.
Ltd. and Ors. (supra) vide judgment dated 02.04.2014 where the deceased
was 24 years the Tribunal had taken the multiplier of 13 considering the age
of the mother of the deceased, as he was a bachelor. This court relying upon
the judgments of the Supreme Court in the case of Mohd. Hasnain & Ors.
vs. Jagram Meena & Ors. (supra) applied a multiplier of 18 based on the
age of the deceased. Against the said judgment the appellant had filed an
SLP before the Supreme Court. The said SLP No.5612/2014 was dismissed
by the Supreme Court on 10.10.2014.
21. In view of the above, I do not find any error in the multiplier of 17
being used by the Tribunal for the calculation of loss of dependency.
22. In the light of the above facts and circumstances, the appeal is
dismissed.
23. Statutory amount, if any, deposited by the appellant at the time of
filing the appeal be released to the appellant.
24. The appellant/Insurance Company shall within four weeks from today
comply with the directions of the Tribunal as per the impugned Award.
JAYANT NATH, J
DECEMBER 12, 2014
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