Rajendra Jhakal & Ors. vs Munna Khan & Ors.
2014 Latest Caselaw 2363 Del

$~33
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+   MAC.APP. 619/2007

    RAJENDRA JHAKAL & ORS.
                                                   ..... Appellant
          Through      Ms. Gauri Neo Ramal, Adv.with
                       Mr. Manish Maine, Adv.

                       versus

    MUNNA KHAN & ORS.               ..... Respondents
       Through  Mr. S.K. Ray & Mr. Amitara Poddar, Advs.
                for R-3.

    CORAM:
    HON'BLE MS. JUSTICE DEEPA SHARMA
                 ORDER

% 09.05.2014

1. The present appeal has been filed for the enhancement of the compensation given by the Tribunal to the LR‟s of deceased Manju Jhakar vide award dated 12.04.2007. The learned tribunal has awarded a sum of Rs.3,32,000/- along with interest @ 7.5% per annum.

2. The fact that deceased Mrs. Manju Jhakar had died in road accident on 26.09.2004 is not disputed. It is also not disputed that death is the result of rash and negligent driving of the offending bus DL-IP-7811. On the fateful day deceased was travelling on scooter DL-7S-7496 as a pillion rider when at Yamuna Pushta Pool (Okhla) the offending bus being driven in rash and negligent manner hit the scooter. She was declared brought dead by the doctor when she was taken to the hospital after the accident. She has been survived by her husband and three children. At the time of accident she was 46 years of age.

3. The findings of the Ld. Tribunal that accident was the result of rash and negligent driving of the offending bus No. DL-IP-7811 is not disputed. Therefore, the said findings have attained finality.

4. The appellant has alleged that the Tribunal has wrongly assessed the income of the deceased who was a house wife @ Rs. 3,000/- per month. It is submitted that the minimum wages ought to have been considered while calculating the loss of dependency. It is argued that the Ld. Tribunal has relied on the findings in the case Lata Wadhwa v. State of Bihar, 2001 (8) SCC 197 while taking Rs.3,000/- per month as a notional income of the deceased. The learned counsel for the appellant has relied on the findings of this Court in Royal Sundaram Alliance Insurance Co. Ltd. V. Manmeet Singh and others and has prayed that calculations ought to have been done on the basis of minimum wages. It is not disputed that deceased was not pursuing any profession and was a house wife.

5. The respondent has argued that the Ld. Tribunal has correctly relied on the law enforced.

6. I have given full consideration to the rival contentions. This court in the case Royal Sundaram Alliance Insurance Co. Ltd.(supra) has after taking into consideration the law laid down in Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC); Helen C. Rebello v. Maharashtra State Road Trans. Corpn., 1999 ACJ 10 (SC); General Manager, Kerala State Road Trans. Corpn. V. Susamma Thomas, 1994 ACJ 1 (SC); Arun Kumar Agrawal, 2010 ACJ 2161 (SC); Berry v. Humm & Co., (1915) 1 KB 627 and Mehmet v. Perry, 1978 ACJ 112 (QBD, England); National Insurance Co. Ltd. V. Deepika, 2010 ACJ 2221 (Madras); Arun Kumar Agrawal, 2010 ACJ 2161 (SC); Amar Singh Thukral v. Sandeep Chhatwal, 2005 ACJ 1187 (Delhi); Gobald Motor Service Ltd. V. R.M.K. Vieluswami, 1958-65 ACJ 179 (SC); A. Ranjam v. M. Manikya Reddy, 1989 ACJ 542 (AP); Morrisv. Rigby (1966) ; Regan v. Williamson, 1977 ACJ 3331 (QBD); Global Motor Service Ltd. 1958-65 ACJ 179 (SC) has observed as under:-

" 34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:

(i) Minimum salary of a graduate where she is a graduate.

(ii) Minimum salary of a matriculate where she is a matriculate.

(iii) Minimum salary of a non-matriculate in other cases.

(iv) There will be an addition of 25 per cent in the assumed income in (i), (ii) and (iii) where the age of the home-maker is up to 40 years; the increase will be restricted to 15 per cent where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.

(v) When the deceased homemaker is above 55 years but less than 60 years, there will be deduction of 25 per cent and when the deceased homemaker is above 60 years, there will be deduction of 50 per cent in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be nil (unless there is evidence to the contrary) when the homemaker is above 65 years.

(vi) If a housewife does issueless, the contribution towards the gratuitous services is much, as there are greater chances of the husband‟s remarriage. In such cases, the loss of dependency shall be 50 per cent of the income as per the qualification stated in (i),

(ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.

(vii) There shall not be any deduction towards the personal and living expenses.

(viii) As an attempt has been made to compensate the loss of dependency, only a notional sum which may be up to Rs. 25,000/- (on present scale of the money value) towards loss of love and affection and Rs. 10,000 towards loss of consortium, if the husband is alive, may be awarded.

(ix) Since a homemaker is not working and thus not earning, no amount should be awarded towards loss to estate."

7. Turning to the facts in this case, it is apparent that the deceased was 46 years of age. There is nothing on record to prove that the deceased was a graduate or a matriculate. Applying the principles laid down in the Royal Sundaram Alliance Insurance Co. Ltd.(supra) case, I take a minimum wages of a non-matriculate for determining loss of dependency. The minimum wages on the date of accident i.e. 26.09.2004 were Rs.3087/- per month. The income of the deceased, therefore, is taken as Rs.3087/- per month. This court has also observed that where the age of the deceased is between 40-50 years, an addition of 15% is to be made in her assumed income. The income, therefore, after prospects is taken as 15%. It is also held in Royal Sundaram Alliance Insurance Co. Ltd. that there shall be no deduction towards personal expenses.

The monthly loss and dependency comes to Rs.3,087/- (income) + Rs.463/- (15% of Rs. 3087/-) = Rs.3,550/-.

The annual loss to dependency comes to Rs.3,550/- x 12 = Rs.42,600/-.

8. The age of the deceased was 46 years so as per Sarla Verma case, the relevant multiplier is 13.

Hence, loss of dependency comes to Rs.42,600/- x 13 = 5,53,800/-. The petitioners are entitled to Rs. 5,53,800/- towards loss of dependency.

9. It is also argued that Ld. Tribunal has awarded a fugal amount of Rs.5,000/- towards loss of consortium. It is prayed that it should be enhanced.

10. It is a well settled law that Section 168 of Motor Vehicle Act empowers the Ld. Tribunal to grant a compensation which appears to it to be just, fair, equitable. The only requirement for determining the compensation is that it must be just, fair and equitable. No limitation or restriction has been put on the power of the Tribunal while awarding just and fair compensation. Reliance placed on the decisions in Oriental Insurance Co. Ltd. V. Mohd. Nasir & Ors. AIR 2009 SC 1219 and Ningamma & Ors. v. United India Insurance Co. Ltd. (2009) 13 SCC 710. In a recent judgment titled Rajesh & Ors. v. Rajbir Singh & ors. 2013 (6) Scale 563 has held as under:-

"20. 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. 10,000/- 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 one lakh for loss of consortium.

21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head „Funeral Expenses‟ does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of „Funeral Expenses‟, in the absence of evidence to the contrary for higher expenses to award at least amount of Rs. 25,000/-."

11. I, following the principle laid down in case Rajesh & Ors. (supra), award the sum of Rs. 1 lac towards loss of consortium and Rs.1 lac towards loss of love and affection and care and guidance to the children and also award a sum of Rs.25,000/- towards funeral expenses.

12. The appellant is entitled to the following compensation:-

      1. Loss of dependency                          Rs. 5,53,800/-
      2. Loss of Consortium                          Rs. 1,00000/-
      3. Funeral Expenses                            Rs. 25,000/-

4. Loss of love, care and affection and guidance to the children: Rs. 1,00000/-

TOTAL: Rs. 7,78,800/-

13. The Insurance Company is directed to pay the amount within six weeks along with the interest at the rate of 9% per annum from the date of petition till its realisation, failing which the Insurance Company shall be liable to pay an interest at the rate of Rs. 12% p.a.from the date of default. 40% of the total amount shall be released to the husband of the deceased and remaining 60% shall be equally distributed amount the children of the deceased.

DEEPA SHARMA, J MAY 09, 2014 hk