Delhi High Court
Neena Devi & Ors. vs Ashok Yadav & Ors. on 7 May, 2014
Author: Deepa Sharma
$~27
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC APP. 731/2010
% Date of decision : 7th May, 2014.
NEENA DEVI & ORS. ..... Appellant
Through: Mr. Amit Kumar Pandey, Adv.
versus
ASHOK YADAV & ORS. ..... Respondents
Through: Mr.Jai Bansal, Adv. for
R-1.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
DEEPA SHARMA, J (Oral)
1. Vide this appeal, the LRs of deceased Kashmir Singh has challenged the
award dated 8th July, 2010 by which a compensation of a sum of Rs.28,26,784/-
had been awarded. The notice of this appeal was issued to respondents No. 1 but
he did not contest the present appeal. The respondent No. 2 had expired and his
LRs were brought on record but none has appeared on thier behalf. The appeal
is contested only by respondent No. 3, the Insurance company.
2. The brief facts of the case are that on 9th May, 2007 at about 4 a.m., Sh.
Kashmir Singh was riding as a pillion rider on a Motor Cycle No. DL4SZ6989
(Hero Honda) being driven by his colleague Sh. Subash Chand Sharma. At the
time of accident, they were coming back from their office and when they
reached near Akshardham Mandir, Pandav Nagar, Delhi, they stopped their
Motorcycle at one side of the road. One truck bearing No. HR-38 B- 2344
driven by respondent No. 1 hit their vehicle from behind resulting into suffering
fatal injuries. The said truck was being driven at a very high speed at that time.
3. There is no contest to the finding of the Tribunal that the accident had
taken place due to rash and negligent driving of Truck No. HR-38 B- 2344
driven by respondent No. 1. The findings of the Tribunal on this issue thus
becomes final.
4. Sh. Kashmir Singh suffered fatal injuries and died in this accident at
GTB Hospital on the very same day. An FIR No. 248/2007 under Sections
279/337/304 A IPC was registered. A claim under Section 140 & 166 Motor
Vehicle Act, 1988 was filed by the legal representatives of deceased Sh.
Kashmir Singh which was registered as Suit No. 409/2007.
5. The award has been assailed by the claimants on two grounds. Firstly
that the Tribunal has wrongly calculated the income of the deceased. It is
contended that the Tribunal has not added the GPF , Gratuity and other benefits
which the deceased was getting along with his salary. Reliance is placed on
National Insurance Company v. Indra Srivastava and ors. (2007 (14) SCALE)
Shyamwati Sharma and others v. Karan Singh and others (2010 ACJ 1968).
Secondly, the Tribunal has not computed the loss of consortium and love and
affection as per law laid down in case titled as Rajesh and others V. Rajbir
Singh & Ors (2013 (6) SCALE).
6. The appeal is contested only by the Insurance Company/respondent No.
4. The Insurance Company has alleged that the award has been correctly passed
after taking into consideration all the relevant factors.
7. I have carefully perused the trial court record and the impugned award
dated 8th July, 2010.
8. In this case there is no challenge to the fact that the accident was a result
of rash and negligent driving of offending vehicle. The finding on this count has
thus attained finality.
9. The first contention of the appellant is that the Tribunal has taken the
amount of Rs.19,263.51 paise as the gross salary whereas the salary slip which
is Ex.PW3/D shows the other benefits which the deceased was drawing as part
of his salary. This includes Provident Fund share, LTA, Gratuity, and P.L.
encashment. It is argued that these benefits were for the benefits of dependents
of the deceased and ought to have been added and the gross salary should have
been taken as Rs.23,668.51 paise.
10. It is a settled law that while calculating the income of the deceased for the
purpose of calculation of loss of dependency, the income includes all the perks
and benefits which were benefitial to the family of the deceased. The Learned
Tribunal while calculating income for the purpose of calculation of loss of
dependency has not added the amount of GPF and Gratuity. In the case
National Insurance Company v. Indra Srivastava and ors.(2007 (14) SCALE)
and also in the case Shyamwati Sharma and others v. Karan Singh and others
(2010 ACJ 1968), the Apex court has clearly held that the term " income"
include other perks which are beneficial to the entire family and the deductions
towards provident fund and gratuity should be added while calculating the
income for this purpose. In the case Shyamwati Sharma and others (supra), the
learned Apex court has added the repayment of loan also into the income of the
deceased for calculation of loss of dependency. However, the leave travelling
allowance is not required to be added into the income as it was not for the
benefit of the family. As per the salary certificate Ex. PW3/D, deceased was
getting Rs.1788/- towards his GPF, Rs. 716 as gratuity and Rs. 1448/- as P.L.
Encashment. The total income of the deceased for the purpose of calculation of
the compensation comes to Rs.17,864 + Rs.1788 + Rs.716 + Rs.1448 = Rs.
21,816/-. The learned Tribunal has thus erred in not adding this amount while
calculating the income of deceased for the purpose of loss of dependency.
11. The learned Tribunal has awarded Rs. 10,000/- towards loss of consortium
and Rs.10,000/- for the loss of love and affection for the minors. The appellant
has claimed Rs. 1,00,000/- towards loss of consortium and Rs.1,00,000/-
towards loss of love and affection relying on the findings of the Apex court in
Rajesh case (supra).
12. The relevant paragraph of the said judgment is reproduced as under :-
"...20. The ratio of a decision of this Court, on a legal
issue is a precedent. But an observation made by this
Court, mainly to achieve uniformity and consistency
on a socio-economic issue, as contrasted from a legal
principle, though a precedent, can be, and in fact
ought to be periodically revisited, as observed in
Santhosh Devi (supra). We may therefore, revisit the
practice of awarding compensation under
conventional heads : loss of consortium to the spouse,
loss of love, care and guidance to children and
funeral expenses. It may be noted that the sum of
Rs.2,500 to Rs.10,00/- in those heads was fixed
several decades ago and having regard to inflation
factor, the same needs to be increased. In Sarla
Verma's case (supra), it was held that compensation
for loss of consortium should be in the range of
Rs.5,000 to Rs.10,000. In legal parlance,
"consortium" is the right of the spouse to the
company, care, help , comfort, guidance, society,
solace, affection and sexual relations with his or her
mate. That non-pecuniary head of damages has not
been properly understood by our Courts. The loss of
companionship, love, care and protection, etc. , the
spouse is entitled to get, has to be compensated
appropriately. The concept of non-pecuniary damage
for loss of consortium is one of the major heads of
award of compensation in other parts of the world
more particularly in the United States of America,
Australia, etc. English Courts have also recognized
the right of a spouse to get compensation even during
the period of temporary disablement by loss of
consortium, the courts have made an attempt to
compensate the loss of spouse's affection, comfort,
solace, companionship, society, assistance, protection
care and sexual relations during the future years.
Unlike the compensation awarded in other countries
and other jurisdictions, since the legal heirs are
otherwise adequately compensated for the pecuniary
loss, it would not be proper to award a major amount
under this head. Hence, we are of the view that it
would only be just and reasonable that the courts
award at least rupees one lakh for loss o
consortium."
13. From the principles laid down by the Hon'ble Supreme Court in the above
mentioned case, I hold that the appellants are wife and minor children of the
deceased are entitled to Rs.1,00,000/- towards loss of consortium and
Rs.1,00,000/- towards loss of love and affection.
14. The compensation in this case is re-assesed as follows:-
SL. No. Heads Calculation
(i) Salary Rs.21,816/-
(ii) 30% of (i) above to he added as Rs.6,544.80
future prospects.
(iii) ¼ the of (ii) deducted as personal Rs.5465/-
expenses of the deceased
(iv) Monthly loss of dependency Rs.21816 + 6544 - 5465 =
Rs.22,895.80
(v) Annual loss of dependency RS.22895.80 x 12 =
Rs.274749.60
(vi) Age of deceased 46 years, = 13
multiplier as per Sarla Verma v.
DTC (2009 ACJ 129 A)
(vii) Total loss of dependency Rs. 274749.60 x 13 =
Rs.3571744.80= rounded to
Rs.35,71,745/-
(viii) Loss of care and guidance for Rs.1,00,000/-
minor children
(ix) Loss of constorium Rs.1,00,000/-
(x) Loss of estate Rs.10,000/-
(xi) Funeral expenses Rs.10,000/-
Total Rs.37,91,745/-
15. In view of above, I award an amount of Rs.37,91,745/- alongwith interest
@ 9 % per annum from the date of filing of the petition.
16. The respondents shall deposit this amount before the Tribunal within a
period of six weeks from today. In case the respondent has already deposited the
compensation awarded by the Tribunal, they shall deposit the enhanced amount
with the Tribunal along with interest at the rate of 9 % per annum within six
weeks from today. In case the respondents fail to deposit the amount within a
period of six weeks, the appellant shall be entitled for interest @ 12 % per
annum from the date of default. The enhanced amount shall be distributed
among the petitioners as per the directions of the Tribunal in the original award
dated 8th July, 2010.
17. The Tribunal has granted the recovery rights to the Insurance company.
The recovery rights are granted to the Insurance company of the enhanced
amount as well.
18 The appeal stands disposed of in the above terms.
DEEPA SHARMA, J
MAY 07, 2014
j
