Delhi High Court
National Insurance Co Ltd. vs Pushpa Devi & Ors. on 6 February, 2014
Author: Suresh Kait
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 6th February, 2014
+ MAC.APP. 455/2013
NATIONAL INSURANCE CO LTD. ..... Appellant
Represented by: Mr. L.K. Tyagi, Advocate.
Versus
PUSHPA DEVI & ORS. ..... Respondents
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is directed against the impugned award
dated 21.01.2013, whereby the learned Tribunal has granted compensation
for a sum of Rs.40,49,895/- with interest at the rate of 9% per annum from
the date of filing of the claim petition till realization of the amount.
2. Learned counsel appearing on behalf of the appellant/Insurance
Company submits that the present appeal is filed mainly on the ground that
while awarding the compensation, the learned Tribunal has assessed the
monthly salary of the deceased as Rs.24,380/- inclusive of the allowances
applicable. However, erred in adding the transport allowance of Rs.2,320/-
for computing the salary of the deceased, which was to be deducted from the
salary as the same was being paid to the deceased for coming to the office.
3. In the case of Sarla Verma Vs. DTC and Ors. 2009 (6) SCC 121, the
Apex Court has held that the starting point of assessment of compensation is
to determine the income of the deceased / injured as the case may be. It is
relevant to note in the case of Sarla Verma (Supra) it is held as under:
"10. Generally the actual income of the deceased less income tax
should be the starting point for calculating the compensation.
The question is whether actual income at the time of death should
be taken as the income or whether any addition should be made
by taking note of future prospects. In Susamma Thomas, this
Court held that the future prospects of advancement in life and
career should also be sounded in terms of money to augment the
multiplicand (annual contribution to the dependants); and that
where the deceased had a stable job, the court can take note of
the prospects of the future and it will be unreasonable to estimate
the loss of dependency on the actual income of the deceased at
the time of death. In that case, the salary of the deceased, aged
39 years at the time of death, was Rs. 1032/- per month. Having
regard to the evidence in regard to future prospects, this Court
was of the view that the higher estimate of monthly income could
be made at Rs. 2000/- as gross income before deducting the
personal living expenses. The decision in Susamma Thomas was
followed in Sarla Dixit v. Balwant Yadav: (1993) IILLJ 664 SC,
where the deceased was getting a gross salary of Rs. 1543/- per
month. Having regard to the future prospects of promotions and
increases, this Court assumed that by the time he retired, his
earning would have nearly doubled, say Rs. 3000/-. This Court
took the average of the actual income at the time of death and the
projected income if he had lived a normal life period, and
determined the monthly income as Rs. 2200/- per month. In Abati
Bezbaruah v. Dy. Director General, Geological Survey of India:
[2003] 1 SCR 1229, as against the actual salary income of Rs.
42,000/- per annum, (Rs. 3500/- per month) at the time of
accident, this Court assumed the income as Rs. 45,000/- per
annum, having regard to the future prospects and career
advancement of the deceased who was 40 years of age.
11. In Susamma Thomas, this Court increased the income by
nearly 100%, in Sarla Dixit, the income was increased only by
50% and in Abati Bezbaruah the income was increased by a
mere 7%. In view of imponderables and uncertainties, we are in
favour of adopting as a rule of thumb, an addition of 50% of
actual salary to the actual salary income of the deceased towards
future prospects, where the deceased had a permanent job and
was below 40 years. [Where the annual income is in the taxable
range, the words 'actual salary' should be read as 'actual salary
less tax']. The addition should be only 30% if the age of the
deceased was 40 to 50 years. There should be no addition, where
the age of deceased is more than 50 years. Though the evidence
may indicate a different percentage of increase, it is necessary to
standardize the addition to avoid different yardsticks being
applied or different methods of calculations being adopted.
Where the deceased was self-employed or was on a fixed salary
(without provision for annual increments etc.), the courts will
usually take only the actual income at the time of death. A
departure therefrom should be made only in rare and exceptional
cases involving special circumstances."
4. In view of above, the travelling allowance that had been granted to the
deceased as part of the salary need to be deducted for ascertaining the actual
salary. Thus, an amount of Rs.2,320/- is deducted from the salary of the
deceased.
5. Accordingly, the compensation on account of loss of dependency
comes to Rs.36,13,428/-.
6. Resultantly, an amount of Rs.3,79,932/- is reduced; and compensation
amount comes to Rs.36,69,963/- (Rs.40,49,895 - Rs.3,79,932).
7. In view of the above, the appeal is allowed and the Registry of this
Court is directed to release the statutory amount along with excess amount
with proportionate interest accrued thereon in favour of the
appellant/Insurance Company.
8. Remaining compensation amount, if any, be released in favour of the
claimants.
SURESH KAIT, J.
FEBRUARY 06, 2014
Sb/jg
