National Insurance Co Ltd. vs Mamta & Ors.
2014 Latest Caselaw 1395 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on:14th March, 2014


+             MAC.APP. 726/2011 & CM No.14856/2011

NATIONAL INSURANCE CO LTD.                        ..... Appellant
             Represented by: Ms.Shantha Devi Raman, Advocate.

                    Versus

MAMTA & ORS.                                                 ..... Respondents
                    Represented by:      Mr.Ashok Popli, Advocate for
                                         Respondent Nos. 1 to 6.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

MAC.APP. 726/2011

1. The instant appeal is preferred against the impugned award dated 01.06.2011, whereby the learned Tribunal has granted compensation for an amount of Rs.22,31,031/- with interest at the rate of 8% 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 claimants have stated in the claim petition that the deceased was a shopkeeper and was earning a sum of Rs.12,500/- per month. They have placed on record the Income Tax Returns (for short 'ITR') of the deceased for the year 2006-07, which is Ex.PW1/6. The said ITR was filed

on 12.11.2006, i.e., prior to the date of accident which occurred on14.03.2007. As per the said ITR, the deceased was earning Rs.1,22,400/- per year. Accordingly, the average income was taken as Rs.10,200/-. However, while calculating the loss of dependency, the learned Tribunal on being considered the previous year ITR presumed the increase in income in current year to some extent, has assessed the income of the deceased as Rs.11,500/- per month.

3. Learned counsel further submits that the learned Tribunal has erred in presuming more income of the deceased, whereas additional income in the actual income of the deceased for future prospects has also been added by it.

4. Learned counsel submits that age of the deceased on the date of the accident was 41 years, despite that the learned Tribunal has added 50% in his actual income towards future prospects.

5. On the other hand, learned counsel appearing on behalf of the respondents/claimants does not dispute the arguments advanced by the learned counsel for the appellant/Insurance Company and submits that as per the ITR filed by the claimants, for computing the loss of dependency, income of the deceased may be considered as Rs.10,200/- per month. He also concedes that keeping in view the age of the deceased, i.e., 41 years, future prospects may be reduced from 50% to 30%.

6. Accordingly, the monthly income of the deceased is assessed at Rs.10,200/-; and 30% of the monthly income is granted as future prospects.

7. However, learned counsel for the respondents/claimants has drawn the

attention of this Court towards compensation granted under non-pecuniary damages like Rs.5,000/- for funeral charges, Rs.10,000/- for loss of consortium and Rs.30,000/- for loss of love and affection, which is on a very lower side.

8. Learned counsel further submits that though the claimants have not filed any cross-objection or appeal, but this Court has to see whether the compensation granted by the learned Tribunal is just, fair and reasonable and prays for enhancement of compensation granted under non-pecuniary heads.

9. Admittedly, the untimely tragic death of the deceased in the accident had deprived the family members from his love and affection and irreparable loss has caused to the family. Claimant No.1 has lost her husband at very young age, four minor children have lost the guidance, love and affection of their father and widowed mother has lost her son and support at the old age instead of seeing his future and progress

10. Therefore, keeping in mind the dictum of the Full Bench of the Apex Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563 and the facts and circumstance of the case, I enhance the compensation on account of loss of consortium to Rs.1,00,000/-, for loss of love and affection to Rs.1,00,000/- and for funeral charges to Rs.25,000/-.

11. Accordingly, the compensation amount comes as under:

     Sl.     Heads of              Compensation        Compensation
     No.     Compensation          granted by ld.      granted by this
                                   Tribunal            Court
     1.      Medical expenses      Rs.    2,531/-      Rs. 2,531/-
     2.      Loss of dependency    Rs.21,73,500/-      Rs.16,70,760/-



   2.     Funeral charges            Rs.    5,000/-    Rs.     25,000/-

         Loss of estate             Rs.   10,000/-    Rs.     10,000/-
  3.     Loss of consortium         Rs.   10,000/-    Rs. 1,00,000/-
  5.     Loss of love and Rs. 30,000/-                Rs. 1,00,000/-
         affection
         TOTAL            Rs.22,31,031/-              Rs.19,08,291/-


       Resultantly,   the   total     compensation   amount     is   assessed   at
Rs.19,08,291/-.

12. Thus, the compensation is reduced to Rs.3,22,740/- (Rs.22,31,031/- - Rs.19,08,291/-).

13. Accordingly, the Registry of this Court is directed to release the statutory amount and the excess amount with proportionate interest in favour of the appellant/Insurance Company and the balance compensation in favour of the respondents/claimants in terms of the order dated 01.06.2011 passed by the learned Tribunal on taking necessary steps by them.

14. In view of the above, the appeal is partially allowed.

CM No.14856/2011 (for stay)

With the disposal of the appeal itself, this application has become infructuous. The same is dismissed accordingly.

SURESH KAIT, J.

MARCH 14, 2014 sb