Hameeda Begum & Ors vs National Insurance Company Ltd & ...
2014 Latest Caselaw 4279 Del

$~A-11
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: 9th September, 2014

+     MAC.APP. 229/2014

      HAMEEDA BEGUM & ORS                   ..... Appellants
                  Through Mr.Anil Batra, Advocate.

                         versus

      NATIONAL INSURANCE
      COMPANY LTD & ORS.                             .... Respondents
                   Through            Ms.Manjusha Wadhwa and Ms.Arpan
                                      Wadhawan, Advocates for Insurance
                                      Company.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the claimants seeking enhancement of the compensation as awarded by the Award dated 12.09.2013. The claim petition was filed under Sections 166 and 140 of the Motor Vehicles Act, 1988 on account of fatal injuries suffered by Shri. Adil Khan.

2. The brief facts of the case are that on 24.12.2010 the deceased was going on a two wheeler scooter. When he reached near Sriniwas Puri, New Delhi he was hit by a tempo traveller. He received fatal injuries and died on the spot. Appellant No.1 is the mother, appellants No.2 and 3 are the unmarried sisters of the deceased who were elder to him in age, appellants No. 4 and 5 are the unmarried brothers of the deceased.

3. The Tribunal awarded Rs.4,28,400/- as loss of dependency, Rs.25,000/- towards funeral charges, Rs.1,00,000/- towards love and

affection and Rs.25,000/- towards loss of estate. A total award of Rs.5,78,400/- was made in favour of the claimants.

4. Learned counsel appearing for the appellants has made two submissions seeking enhancement of the compensation amount. He firstly submits that the Tribunal has wrongly taken a multiplier of five for purposes of assessing a total loss of dependency. He submits that the deceased was 36 years of age and the multiplier has been wrongly taken based on the age of appellant No.1, the mother of the deceased, who was 73 years of age on the date of the accident. He next submits that the Tribunal has also erroneously deducted one-half from the assessed income of the deceased on account of expenditure on self. It is urged that though the deceased was a bachelor, the appellants including the unmarried sisters and the unmarried brothers were all dependent upon the deceased. It is urged that the family stays in village Deoband, District Saharanpur, U.P. Appellants No. 2 and 3 in view of the area where they are staying are not employed and cannot also be employed. He further submits that they were wholly dependent upon the deceased brother for their sustenance. He further submits that on that date the two brothers were also unemployed. Hence, it urged that deduction of personal expenditure has to be made keeping into account the fact that the deceased had five dependents and the mother was not the only dependent of the deceased.

5. Learned counsel for the respondent Insurance Company submits that the Tribunal has computed the salary of the deceased wrongly. She points out that as per the salary slip of the deceased, apart from HRA, conveyance allowance, medical allowance, he was also receiving a special allowance of Rs. 3,670/-which has been added to the income of the deceased. She submits that this has been wrongly added by the Tribunal and on account of same,

the total compensation has worked out to a much higher figure. It is further submitted that the Tribunal after having assessed the income of the deceased has added 50% for future prospects. Based on these two factors she submits that the awarded amount is already on the higher side and there can be no reason to interfere with the award amount. She further submits that as per the evidence on record the deceased was employed from 08.01.2008. The accident had taken place on 24.12.2010. Hence, she submits that the deceased was employed only for the last two years. The admitted fact is that appellant No.2 is aged 55 years and appellant No. 3 is 43 years old. Hence, the question of their being dependent on the deceased does not arise.

6. I will first deal with the issue of number of dependants of the deceased. A perusal of the evidence shows that Mr.Firoz/PW-2, Ms.Zeenat/PW-3 have both filed stereotype similar affidavits. PW-3 Zeenat states that Azhra Shehzadi/appellant No.2, one of the unmarried sisters is 54 years of age and PW-3/appellant No.3 herself is 42 years old: Firoz/appellant No.4, the unmarried brother is 38 years old and Azmal/appellant No.5, the other unmarried brother is 40 years. She further states that all the four were unemployed. In her cross-examination she admits that she has studied up to M.Com. She states that there were four brothers and four sisters. She admits that one brother, namely, Tausif Khan who is 46/47 years of age, married and stays separately with his wife. She also admits that that Ajmal Khan, Appellant No.5 though unmarried has a small shop near the house. It is said that he remains ill most of the time and the shop remains closed. Regarding Firoz/appellant No.4 she admits in her cross-examination that he has recently taken a job in a plastic factory. There is also another sister Nargis aged 52 years who is married and settled at Deoband, District Saharanpur, U.P. The fourth sister Nigar is also married

and settled at Sharanpur.

7. Above evidence of PW-3 does not inspire confidence. If she could pass an M.Com examination, there is no reason as to why she could not have acquired any employment. One brother has a shop. If he is unwell and the shop remains closed, it is not clear as to why the other family members could not run the shop.

8. In view of the above evidence on record, I see no reason to disturb the findings of the Tribunal on deduction of 50% for expenditure on self from the assessed income of the deceased to assess the loss of dependency.

9. Regarding the contention of the counsel for the appellants that a wrong multiplier has been applied by the Tribunal, this Court in the case of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors., MANU/DE/0715/2014; 2014 (142) DRJ 303 held that the multiplier has to be based on the age of the deceased. That was a case where the age of the deceased was 39 years.

10. This Court in the said case of Mohd. Hasnain & Ors. vs. Jagram Meena & Ors (supra) relied on the judgments of the Supreme Court in case of M. Mansoor vs. United India Insurance Co. Ltd., MANU/SC/1042 and the case of Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors. MANU/SC/0537/2012. The Supreme Court in the later case held as follows:-

"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependants. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of the dependants has no nexus with the computation of compensation."

11. M. Mansoor vs. United India Insurance Co. Ltd (supra) was a case where the deceased was a bachelor of 24 years of age and the Supreme Court held that the selection of the multiplier is based on the age of the

deceased and not the age of the dependants. Further, in the case of Amrit Bhanu Shali & Ors. vs. National Insurance Co. Ltd. & Ors. (supra) the deceased was a bachelor aged 26 years and the Court applied the multiplier of 17.

12. Accordingly, in view of the above, the multiplier would be based on the age of the deceased who was 36 years. In view of 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, the multiplier would be 15 for computing loss of dependency.

13. I may also deal with the submissions of learned counsel for the respondent regarding the computation of the salary of the deceased and the addition of future prospects on the computed salary.

14. She has submitted that as per the salary slip of the deceased he was getting a special allowance of Rs.3,670/- which according to her has been wrongly added to the income of the deceased.

15. A perusal of the evidence of PW-4 Mohd.Ashraf Anees, HR (Executive) M/s.Fasttrax Food Pvt.Ltd., the employer of the deceased shows that he has stated that as per the salary slip of the deceased for November 2010 Ex.PW4/D the deceased was getting a salary of Rs.11,570/- which amongst others included a special allowance of Rs.3,670/-. There is no cross-examination by any of the counsel appearing for the respondents before the Tribunal on the said submission of PW-4 regarding the special allowance of Rs.3670/- paid to the deceased.

16. Ex.PW4/D the salary slip tendered in evidence by PW-4 shows that the earnings comprised of basic of Rs.3,900/-, HRA Rs.1,950/-,conveyance Rs.800/-, Medical Rs.1,250/- and other allowance of Rs.3,670/-. Hence, total earnings are Rs.11,570/-. However, the Tribunal had excluded conveyance

and medical allowance and taken the income as Rs.9,520/- for assessment of loss of dependency.

17. The Supreme Court in the case of National Insurance Co. Ltd. vs. Indira Srivastava AIR 2008 SC 845 ; MANU/SC/8201/2007 in paragraph 8 has noted as follows:-

"8. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monitory terms."

18. In view of the above, it is apparent that the special allowance is a allowance beneficial to the members of the entire family. There is nothing to show that this cannot be considered as a allowance for the benefit of the family. In fact there is no cross-examination of PW-4 on this aspect. Hence there is no merit in the said contention of the learned counsel for the respondent.

19. Learned counsel for the respondent has also averred that the Tribunal has wrongly added future prospects @ 50% to the assessed income of the deceased. This Court has in several judgments relying upon various judgments of the Supreme Court held that enhancing the income for future prospects/rise in prices is appropriate. Hence, there is no merit in the said contention of the respondent also.

20. Hence the contention of learned counsel for the respondent that the Tribunal has already assessed the income of the deceased on the higher side has no merits and the said contention cannot be accepted.

21. Hence, the compensation for loss of dependency would now come to

Rs.12,85,200/- [(9520+50% - ½ ) x12x15]. Total compensation would come to Rs.14,35,200/- taking into account the other amounts awarded by the Tribunal.

22. The additional amount as directed by this court may be deposited by respondent No.1 Insurance Company within six weeks from today with accumulated interest @ 7% per annum from the date of the filing of the claim petition till deposit in court. The same may be released to the claimants/appellants proportionately in the same ratio as directed by the Tribunal.

23. Appeal stands disposed of.

JAYANT NATH, J SEPTEMBER 09, 2014 rb