Neelam & Ors vs Rajiv Kumar & Anr
2014 Latest Caselaw 4788 Del

$~A-35 &41
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of Decision: September 24, 2014.

+     MAC.APP. 874/2014

      NEELAM & ORS                                ..... Appellants
                        Through        Mr.J.P.N.Shahi, Advocate.


                        versus

      RAJIV KUMAR & ANR                           ..... Respondents
                   Through             Ms.Garima Prasad, Advocate for
                                       U.P.Road State Corporation.

+     MAC.APP. 776/2014 and CM No.13980/2014 (stay)

      U.P.STATE ROAD TRANSPORT
      CORPORATION THROUGH ITS
      REGIONAL MANAGER                       ..... Appellant
                    Through Ms.Garima Prasad, Advocate.

                        versus

      SMT. NEELAM & ORS                           ..... Respondents
                   Through             Mr.J.P.N.Shahi, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. MAC.APP. 874/2014 is filed by the claimants seeking enhancement of compensation.

2. MAC. APP. 776/2014 is filed by the owner of the offending vehicle i.e. U.P.State Road Corpn. seeking reduction in the compensation amount

awarded.

3. The brief facts are that the present claim petition was filed under Sections 166 and 140 of the Motor Vehicles Act, 1988 by the dependents of the deceased Shri Naresh Kumar. On 21.07.2011 the deceased was going on his motorcycle towards ISBT, Kashmiri Gate. After crossing Shashtri Park Red Light, the deceased was in a stationary position on the extreme left side of the road when he was hit by a bus belonging to the owner U.P.State Road Transport Corpn.(UPSRTC) with great force. The deceased fell down and sustained fatal injuries. He was declared brought dead at the hospital.

4. The Tribunal concluded that the accident took place due to rash and negligent driving of the vehicle owned by U.P.State Road Transport Corpn.

5. On compensation, the Tribunal awarded a total compensation of Rs.23,77,177/- as follows:-

       Loss of dependency                      Rs.21,42,177/-
       Love and affection                       Rs.1,00,000/-
       Loss of consortium                       Rs.1,00,000/-
       Loss of Estate                             Rs.10,000/-
       Funeral Expenses                           Rs.25,000/-
       Total                                   Rs.23,77,177/-

6. The Tribunal noted that as per the pay slip Ex.PW-2/B the deceased had a gross salary of Rs.22,413/- per month. He was receiving some allowances and the Tribunal accepted his salary at Rs.19,617/- per month. He was 45 years old. The Tribunal noted that his son was working and the two daughters were married. The Tribunal has accepted that the widow of the deceased as the only dependent and deducted 1/2 towards personal and living expenses. The assessed salary was increased by 30% based on the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., 2013 (6) Scale 563. Using the multiplier of 14 a total loss of

dependency came to Rs.21,42,177/-.

MAC.APP.776/2014

7. I will first deal with the appeal filed by UPSRTC, MAC. APP 776/2014. This appeal came up for hearing before this court on 27.08.2014 when it was pointed out by the learned counsel appearing for the claimants that their cross-appeal will also be coming up for hearing. Accordingly, the matter was adjourned for today. As arguments have made by counsel for appellant and respondents the matter can be disposed of at this stage itself.

8. Learned counsel for U.P.Road Transport Corpn. has made only one submission to impugn the awarded compensation. She submits that while calculating monthly salary the Tribunal has not deducted any amount whatsoever for income tax. She submits that the said amount should have been deducted from the income for computing loss of dependency.

9. Though the pay slip has not been filed, learned counsel for the U.P.State Road Corpn. has produced the pay slip in court (Ex.PW-2/B). A perusal of the same shows that there is no deduction being made by the employer on account of income tax.

10. Under Section 192(1) of the Income Tax Act an employer is obliged to deduct income tax form the salary of an employee. Clearly the employer was legally obliged to deduct appropriate income tax before paying the salary. As no such deduction has been made, as is clear from the pay slip, in view of the aforesaid provision of the Income Tax Act, it can be presumed that the deceased was not subjected to income tax. There is nothing on record to show that the deceased had, given his pay structure, any liability to pay income tax. He could have been saving in schemes that would have brought him below the taxable limit. There is no merit in the contention of the learned counsel for U.P.State Road Corpn.

11. The appeal filed by U.P.State Road Corpn. i.e. MAC APP. No.776/2014 is dismissed. The statutory amount paid by the appellant be refunded to the appellant after showing compliance of the award. MAC.APP. 874/2014

12. Now coming to MAC APP. 874/2014 filed by the claimants.

13. Issue notice.

14. Learned counsel for respondent No.2 accepts notice and states that notice need not be served on respondent No.1. Arguments in this case have been heard along with MAC.APP.776/2014. In view thereof, the present appeal can also be disposed of based on the said submissions.

15. Learned counsel appearing for the claimants has sought enhancement of compensation only on one ground. He submits that the Tribunal has wrongly deducted 50% as expenditure on self by the deceased for computing loss of dependency. He submits that even assuming that the two daughters were married and the son was working, the Tribunal could not have deducted 50% from the income. He submits that firstly, the son was yet to get married; expenditure was being done on the son. He was to be married. Further he submits that in the Indian context, daughters frequently visit their parents especially on various functions, festivals and occasions. Normally parents would like to on such occasions give gifts to their daughters and her family. He has further pointed out that in case of grandchildren, the grandparents would like to give gifts to the grandchildren also. He submits that this kind of expenditure a Bachelor would not make. Hence, the situation like that of the claimant cannot be equated with that of the bachelor. He submits that even otherwise a person having settled his children would not be spending 50% of his income on self and would be adding to family the assets and wealth. He submits that if for some reason

loss of dependency is calculated at 50%, taking a reasonable view of the circumstances, even otherwise an addition to the estate of the deceased and loss of estate would be at a much high figure and what has been awarded by the Tribunal at Rs.10,000/-.

16. Learned counsel for the claimant relies on a judgment of this court in the case of MAC.APP. 288/2011 titled Smt.Shakuntala vs. Sh. Naresh Kumar dated 16.05.2011 to contend that this position already stands accepted by the court.

17. Learned counsel for UPSRTC. contends that deduction of 1/2 for personal expenses of the deceased is in order. She relies upon the judgment of this court in the case of Ramesh Chand Pasi & Ors. vs. Sh.Sukan Mehto & Ors., 2014 (142) DRJ 670 to support her contention.

18. In this context reference may be had to the judgment of this court in the case of Kamlesh Mittal & Ors. vs. Oriental Insurance Co. Ltd. & Ors. in MAC. APP.283/2010 dated 03.09.2014 where this court after discussing the judgment of Sarla Verma vs. DTC & Ors., (2009) 6 SCC 121 in para 14 and 15 held as follows:-

"14. Hence, the Supreme Court has laid down a standard formula/guideline to ensure consistency in the Awards of various tribunals. However, a perusal of the guidelines laid down shows that a situation like this has not been dealt with namely, where the deceased is married and has children who are all settled and the widow is the only person who could be considered as dependent. I may, however, note that the Supreme Court noted that in case of a bachelor where deduction of 50% was stated, the Court noted that this was because it was assumed that a bachelor would tend to spend more on himself. Further there is a possibility of his getting married in a short time in which event the contribution to the parents/siblings was likely to be cut drastically.

15. In my opinion, in a situation like the present one, the

situation of the deceased cannot be treated at par with a bachelor. There is merit in the said submission of learned counsel for the appellant that a man of 54 years of age who is professionally well qualified with two settled children and a wife would not be spending 50% of his wages for personal living expenses. He would be inclined to accumulate wealth for his old age days and also for the benefit of his wife and children. One cannot also ignore that being a father of a married daughter and a son, who is likely to get married he would have spent on the marriage of the son, on his grand children after they were born. These are expenses which a man who has grown to that age and who is well settled would normally be incurring. These expenses cannot be ignored. Keeping in view these facts and circumstances in my opinion, the appropriate deduction to be made from the income of the deceased in the facts and circumstances of this case was 1/3 rd and not 50% as done by the tribunal. Hence, 1/3rd is only to be deducted from personal expenses."

19. Similarly this court in the case of Smt.Shakuntala vs. Sh. Naresh Kumar(supra) in paras 6 & 7 held as follows:-

"6. I am inclined to agree with the aforesaid contention of Mr.Mannie for the reasons that though the deceased left behind his widow and two unmarried daughters who were wholly dependent upon him, the deceased also left behind him two married daughters and a son, who though may not have been dependent on him stricto senso, nevertheless formed part of his family. The married daughters of the deceased have been awarded only a sum of Rs.10,000/- each while the son of the deceased has been awarded Rs.15,000/- only by the Claims Tribunal.

7. It is well known that in Indian Society married daughters are also the beneficiaries of various gifts and cash amounts from the father from time to time. The appellant No.4, who was the son of the deceased, was also unmarried and in due course of time the father would have expended some amount of money on his marriage and would have supported him in times of need. Accordingly, in my view, the deduction of one-fourth of

the income of the deceased ought to have been made by the Claims Tribunal while calculating the loss of dependency of the appellants."

20. The judgment of this court in the case of Ramesh Chand Pasi & Ors. vs. Sh.Sukan Mehto & Ors. (supra) is of no assistance to UPRSTC. A perusal of the judgment shows that no such submission, as raised here by the claimant was either raised in that case and nor did the court deal with any such issue.

21. In view of the above position and keeping in view the facts of this case, I change the deduction of 1/2 to 1/3 for expenditure on self for the purposes of calculating loss of dependency. Hence, loss of dependency now comes to Rs.28,56,235/- [(Rs.19617 + 30% -1/3) x 12 x 14].

22. The total compensation now comes to Rs.30,91,235/- break-up of which is as follows:-

       Loss of dependency                     Rs.28,56,235/-
       Love and affection                      Rs.1,00,000/-
       Loss of consortium                      Rs.1,00,000/-
       Loss of Estate                            Rs.10,000/-
       Funeral Expenses                          Rs.25,000/-
       Total                                  Rs.30,91,235/-

23. Enhanced amount with pendent lite interest @9% p.a. be deposited within four weeks from today and the same may be disbursed to the claimant proportionately as per the directions in the Award.

24. The appeal of the claimants i.e. MAC A. 874/2014 stands disposed of.

25. All pending applications stand disposed of.

JAYANT NATH, J SEPTEMBER 24, 2014 rb