Delhi High Court
Ashu & Ors vs New India Assurance Co Ltd on 14 October, 2014
$~A-1, 18,19,20,21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14.10.2014
+ MAC.APP. 372/2014
ASHU & ORS ..... Appellant
Through Ms.Aruna Mehta, Adv.
versus
NEW INDIA ASSURANCE CO LTD ..... Respondent
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani, Adv.
+ MAC.APP. 737/2013
NEW INDIA ASSURANCE CO. LTD ..... Appellant
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani, Adv.
versus
ASHU & ORS ..... Respondent
Through Ms.Aruna Mehta, Adv.
+ MAC.APP. 743/2013
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani, Adv.
versus
SHYAM PYARI & ORS. ..... Respondent
Through Ms.Aruna Mehta, Adv.
+ MAC.APP. 744/2013
NEW INDIA ASSURANCE CO. LTD ..... Appellant
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani, Adv.
versus
VIMAL MISHRA & ORS. ..... Respondent
Through Mr.S.N.Parashar, Adv. for R-1 to R-6
.
MAC.APP.372/2014 & connected matters Page 1 of 8
+ MAC.APP. 747/2013
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Mr.Manish Kaushik, Adv. for
Mr.K.L.Nandwani, Adv.
versus
SHIBEET PRASANNA & ORS. ..... Respondent
Through Ms.Aruna Mehta, Adv.
CORAM :
HON'BLE MR.JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. There are five appeals. MAC.APP.737/2013 filed by Insurance company
and 372/2014 filed by the claimants relate to the death of deceased Sh.Laxman
Prasad. MAC.APP.743/2013 is filed by the Insurance company concerning the
death of Sh.Atul Prasanna, MAC.APP.744/2013 is filed on account of death of
Sh.Rama Shankar Mishra and MAC.APP.747/2012 is filed to impugn the
award on account of the injured Sh.Shibeet Prasanna.
2. The brief facts leading to filing of these claim petitions is that the
deceased and the injured were travelling in a TSR on 13.11.2011. When the
TSR reached Shanti Van it was hit by a truck said to be driven by the driver of
the offending vehicle in a rash and negligent manner. Three of the occupants,
namely, Rama Shankar Mishra, Laxman Prasad and Atul Prasanna suffered
injuries and died. Fourth occupant Shibeet Prasanna was injured in the
accident. Hence, the four claim petitions were filed.
MAC.APP.No.737/2013
MAC.APP.No.744/2013
MAC.APP.No.743/2013
MAC.AP.No.747/2013
3. Learned counsel appearing for the appellant has made two submissions.
He firstly submits that this was a case of a head on collision and hence there
was contributory negligence of the driver of the truck and the driver of the
TSR. On this basis he submits that compensation awarded should be shared
between the owners of the said two vehicles. He secondly submits that while
calculating loss of dependency the Tribunal in all the matters relating to death,
has granted future prospects. He submits that relying upon the judgment of the
Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport
Corporation and Anr., (2009) 6 SCC 121 that future prospects are not payable
and hence the Tribunal has erroneously computed loss of dependency.
4. Coming to the issue of contributory negligence, it may be noted that the
Tribunal recorded that the accident took place due to the rash and negligent
driving of the driver of the offending vehicle, namely, the truck. The Tribunal
relied upon the mechanical inspection report, photographs of the offending
vehicle and TSR, the FIR and the evidence of PW-2 who was an eye witness.
5. Learned counsel appearing for the insurance company has relied upon
observations of the Tribunal which notes that as per mechanical inspection
report the offending vehicle and the TSR were damaged from the front side.
6. I may first look at the evidence of PW-2 Shibeet Prasanna the eye
witness and also a co-occupant of the TSR. The said PW-2 in his evidence by
way of affidavit has pointed out that three of them were coming back in a three
wheeler scooter with their musical instruments after having concluded the
rehearsal for the Trade fair. He has further averred that the Truck came from
the opposite side and abruptly took turn towards the side of the TSR and hit the
TSR with great impact. There is no cross-examination of the said witness on
the said statement made.
7. In view of the unrebutted testimony of PW-2, the eye witness, I do not
see any infirmity in the conclusions drawn by the Tribunal. The reliance of
learned counsel for the insurance company on the certain observations in the
Award pertaining to the mechanical inspection report are misplaced. There is
no merit in the said contention.
8. Coming to the issue of future prospects, I can take judicial note of the
fact that minimum wages for a skilled worker in 2002 were Rs.3,103.7 P.M.
and in 2012 were Rs.8,528/- P.M. It is obvious that the prescribed minimum
wages have more than doubled in ten years.
9. In the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54
the Supreme Court held that in the case of self employed or those on fixed
wages, when the victim is below 40 years an addition of 50% should be made
in the wages for the purpose of computing loss of future earnings for the
compensation to be just and equitable.
10. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505,
the Supreme Court was of the view that in the case of self employed or those
engaged on fixed wages, 30% increase in income over period of time would be
appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441,
the Supreme Court in the case of a student who was studying in Class XI aged
16 years had awarded 50% increase for future prospects.
11. Hence, the Tribunal rightly granted future prospects.
12. There is no merit in the appeals of the appellant. MAC.App. 737/2013,
MAC.App. 744/2013, MAC.App. 743/2013 and MAC.App. 747/2013 are
dismissed.
13. In case any statutory amount was deposited by the appellant at the time of
filing of the appeal, the same may be refunded to the appellant.
MAC.APP.372/2014
14. MAC.APP.372/2014 pertain to the deceased Laxman Prasad. The
deceased was 33 years of age and was working as a Mason. He had three minor
children a widow and a father. The Tribunal took the minimum wages of
Rs.8,112/- applicable for a skilled worker for the purpose of computing loss of
dependency. Total compensation of Rs.15,73,566/- was awarded i.e.
Rs.15,18,566/- for loss of dependency, Rs.10,000/- towards loss of consortium,
Rs.10,000/- towards loss of estate, Rs.10,000/- for funeral expenses and
Rs.25,000/- for loss of love and affection.
15. Learned counsel appearing for the claimants has made three submissions.
He firstly submits that relying on the judgment of the Supreme Court in the
case of Rajesh & Ors. vs. Rajbir Singh & Ors., (supra), the Tribunal has
wrongly added future prospects @30% whereas the Tribunal should have taken
50% as future prospects. She also submits that for loss of consortium and loss
of estate inadequate compensation has been awarded. She lastly submits that
relying upon the judgment of the Supreme Court in the case of Kalpanaraj and
Ors. vs. Tamil Nadu State Transport Corpn. 2014 ACJ 1388(SC) that apart
from loss of consortium, loss of estate and loss of love and affection the
Supreme Court in the said judgment also awarded Rs.1 lac for loss of
expectation of life.
16. Coming to the first submission of learned counsel for the claimant a
perusal of the award shows that the Tribunal has added 30% on account of
future prospects and also noted that the age of the deceased was 32 years. This
is contrary to the judgment of the Supreme Court in the case of Rajesh & Ors.
vs. Rajbir Singh & Ors., (supra). Accordingly, future prospects would be
50%.
17. On loss of consortium the Tribunal has awarded Rs.10,000/-. I increase
this amount to Rs.1 lac. Towards love and affection the Tribunal has awarded
Rs.25,000/-. I increase this amount to Rs.1 lac.
18. Keeping in view the above increase in my opinion the compensation
would be just, fair and reasonable.
19. Further enhancement would not be appropriate in the facts and
circumstances of this case. Accordingly, the claimant in this case would be
entitled to following compensation:-
"For loss of dependency Rs.18,98,208/-
For loss of consortium Rs. 1,00,000/-
For loss of estate Rs. 10,000/-
Funeral expenses Rs. 10,000/-
Loss of love and affection Rs. 1,00,000/-
Total Rs.21,18,208/-"
Cross Appeal No. ...... (to be numbered)/2014
20. This is a cross appeal which has not been numbered separately. Registry
may give a separate number.
21. This appeal pertains to the deceased Atul Prasanna. The deceased was 22
years of age and a graduate in musical instrument, working as a musician. The
tribunal keeping into account the evidence placed on record by the claimant,
assessed the income at Rs.15,000/- per month. The deceased was a bachelor
and was survived by his parents and sisters. 50% was deducted on account of
personal expenses of the deceased. The deceased was said to be 22 years of
age. Multiplier of 18 was taken. Hence a total compensation of Rs.21,61,000/-
was awarded. Loss of dependency was taken at Rs.21,06,000/-. Rs.10,000/-
was towards loss of consortium; Rs. 10,000/- was towards loss of estate;
Rs.10,000/- was as funeral expenses; Rs.25,000/- towards love and affection.
22. It is not understood as to why the tribunal has awarded loss of
consortium inasmuch as the deceased was unmarried. The Supreme Court in
the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (supra). on loss of
consortium has said as follows:
"20. 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
of consortium."
23. Accordingly, I remove the said amount of Rs.10,000/- from the Award.
24. On the issue of loss of love and affection, the tribunal has awarded
Rs.25,000/-. The said amount is enhanced to Rs.1 lakh keeping in view the
judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh
& Ors., (supra). In addition, I also enhance the amount of Rs.10,000/- given as
funeral expenses to Rs.25,000/-.
For loss of dependency Rs.21,06,000/-
For loss of estate Rs. 10,000/-
Funeral expenses Rs. 25,000/-
Loss of love and affection Rs. 1,00,000/-
Total Rs. 22,41,000/-"
25. Accordingly, the compensation would now come to Rs.22,41,000/-. In
my opinion, the said compensation is just, fair and reasonable.
26. The respondent/insurance company will deposit the additional
compensation as directed by this Court with pendent lite interest @9% per
annum from the date of filing of the petition till deposit in Court. The same be
released to the appellant as directed by the Tribunal.
27. Appeal stands disposed of.
JAYANT NATH, J
OCTOBER 14, 2014
n/raj/sh
