Delhi High Court
Reliance General Insurance Co Ltd vs Sanju & Ors. on 9 May, 2014
Author: Deepa Sharma
$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 1220/2012
RELIANCE GENERAL INSURANCE CO LTD
..... Appellant
Through : Mr. Sameer Nandwani, Adv.
versus
SANJU & ORS. ..... Respondents
Through : Mr. Katan Singh, Adv. for
R1-4.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 09.05.2014
1. The present appeal has been filed for reduction of the
compensation amount of Rs.15,88,600/- along with interest @ 9%
per annum which was awarded to the LR‟s of the deceased by the
Ld. Tribunal vide its order dated 6th September, 2012.
2. The appellant has not disputed its liability. The factum that
the accident had taken place due to rash and negligent driving of
the offending vehicle by its driver is also not disputed. These
findings have thus attained finality.
3. The deceased namely Ganga Ram met with an accident on
7th October, 2010 when he was riding a cycle near Gole Chakkar,
Bhorgarh, Narela, Muneem Ji ka Bagh. A Truck Tata No. 407 HR
61 B1443 being driven in rash and negligent manner had hit him.
An FIR No. 413/2010 in PS Narela was registered in this regard.
4. After making enquiry into the matter, the learned Tribunal
has concluded that the claimants had failed to produce on record
any proof regarding the employment of the deceased in a factory
and drawing of Rs.8,000/- per month as salary. Recourse was
taken to the minimum wages considering that the deceased was a
semi- skilled worker. His salary was thus taken as Rs.5850/- per
month and 50% of same was added towards future prospect while
calculating loss of dependency. He was survived by his wife, two
minor sons and mother. There is no dispute regarding the age of the
deceased which was 35 years at the time of his death. The future
prospects of 50% were added in his wages while calculating loss of
dependency and deduction of 1/4th towards personal expenses of
deceased was also made. The multiplier of 16 was used.
5. Non pecuniary expenses were granted @ Rs.25,000/-
towards funeral charges, loss of estate of Rs.1,00,000/- and
Rs.50,000/- towards loss of consortium and Rs. 2 lacs towards loss
of love and affection.
6. It is argued on behalf of the appellant, that the ld. Tribunal
has wrongly granted a sum of Rs. 25,000/- towards funeral
expenses and Rs. 50,000/- towards loss of consortium and Rs. 1 lac
towards loss of Estate and Rs. 2 lacs towards loss of love and
affection.
7. I am of the view that the ld. Tribunal has wrongly granted a
sum of Rs. 1 lac towards loss of Estate. It is an exorbitant amount
and not just, fair and reasonable compensation towards loss of
Estate. I award sum of Rs. 10,000/- towards loss of Estate.
Hon‟ble Apex Court in the case Rajesh & Ors. vs. Rajbir Singh &
Ors, 2013 (6) Scale 563 dealt with the grant of compensation
towards loss of consortium, love and affection and funeral charges
and has observed 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/-."
8. In view of the proposition of the law, as discussed above, the
ld. Tribunal has rightly awarded sum of Rs. 25,000/- towards
funeral expenses. I, however, award a sum of Rs. 1 lac towards
loss of consortium and Rs. 1 lac towards loss of love and affection.
9. Although, the appellant has not raised this contention in the
appeal but has orally argued that the learned Tribunal ought not to
have granted the future prospects in view of law laid down in Sarla
Verma v. DTC 2009 ACJ 129 A.
10. It is argued on behalf of the claimants that the leaned tribunal
has rightly granted the loss of future prospects while calculating the
loss of dependency.
11. The deceased was employed in a factory but since no
document could be produced regarding his salary, the court has
taken his income on the basis of schedule of minimum wages.
There is no evidence on record that the deceased was either self
employed or was working in a fixed salary without provision of
annual income, etc.
12. The apex court in Sarla Verma (supra) has clearly laid down
the proposition for grant of the future prospects. It has categorised
the categories of persons entitled for the future prospects. The
relevant paragraphs are reproduced 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 [1996 (3) SCC 179], 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 (3) SCC 148], 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. Re : Question (ii) - deduction
for personal and living expenses
13. From the directions in Sarla Verma Case (supra) , it is
apparent that only two categories of persons are not entitled to
future prospects, one, when the deceased was self-employed and
secondly, when the deceased was working on a fixed salary
(without prospect of annual increment etc).
14. The Apex court has made a reference of Sushma Thomas
Case wherein the future prospects were given to a deceased who
had a „stable job‟. In other referred cases also, the deceased were
salaried persons. The careful reading of the findings of the Apex
court clearly shows that it had intended to exclude only two
categories i.e. where the deceased was self-employed or where he
was working on a fixed salary with no provision of annual
increment etc. By necessary implication, it can be concluded that
the Hon‟ble Apex court has not intended to exclude the salaried
persons who are not employed on a fixed salary. Thus, the Apex
court had meant to include all those persons which are in the
employment but not on a fixed salary. The deceased in this case
was employed in a factory. There is no evidence that he was
working on a fixed salary without any provision of annual
increment. The appellant has not produced on record any evidence
to support its contention. No suggestion was either given to any of
the witness. Even otherwise, the court has assessed the income of
the deceased on the basis of minimum wages and the government
revises the minimum wages twice annually i.e. on 1st of February
and 1st of August. Thus, it cannot be said that deceased was
working on a fixed salary and so falls in the exempted category in
Sarla Verma (Supra) Case.
15. On these facts and circumstance of the case, the ld. Tribunal
has rightly granted the future prospects and there is nothing on
record to disturb the finding of the Ld. Tribunal on this count.
16. The compensation is now calculated as under:-
Loss of dependency Rs. 12,63,600/-
Funeral charges Rs. 25,000/-
Loss of Estate Rs. 10,000/-
Loss of consortium Rs. 1,00,000/-
Loss of love and affection and Rs. 1,00,000/-
guidance towards minor
Loss of love and affection Rs. 50,000/-
towards mother
Total Rs. 15,48,600/-
17. I award Rs. 15,48,600/- alongwith interest at the rate of 9%
per annum from the date of filing of the petition. The amount shall
be paid within eight weeks, in default of which, the appellants are
liable to pay interest at the rate of Rs. 12% per annum from the
date of default till its realisation.
18. The distribution of the amount among the legal heirs of the
deceased Ganga Ram shall be made as per the directions of the
learned tribunal in its award dated 06.09.2012.
19. The appeal stands disposed of in the above terms.
DEEPA SHARMA, J
MAY 09, 2014
J
