Delhi High Court
Smt. Afsana Khatoon @Afsana vs M/S The New India Assurance Co. on 30 September, 2014
$~A-27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 30.07.2014
Judgment pronounced on : 30.09.2014
+ MAC.APP.835/2013
SMT. AFSANA KHATOON @AFSANA ..... Appellants
Through Mr. Ali Murtaza and Ms. Tarannum
Rani, Advs.
versus
M/S THE NEW INDIA ASSURANCE CO.
LTD. & ORS. ..... Respondents
Through Mr. J.P.N. Shahi, Adv for R-1
Mr. Sanjeev Behl, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The present appeal is filed to impugn the order of the Tribunal dated
27.04.2013 seeking enhancement of the compensation awarded on a petition
filed by the appellants under section 166 and 140 of the Motor Vehicles Act,
1988.
2. The brief facts are that on 26.06.2012 at about 5.30 pm, Sh.
Muzzaffar Ali @Lila was going home in an auto rickshaw. When he reached
near GATTA Factory, a Tata 407 coming from opposite side being driven
rashly and negligently hit the TSR. The deceased suffered injuries and died
on the way to the hospital.
3. The Tribunal based on the evidence held that the accident was caused
by the rash and negligent driving of respondent No.2.
4. On compensation, the Tribunal awarded the following amount:
i) Loss of dependency Rs.11,68,128/-
ii) Love and affection Rs.25,000/-
iii) Loss of consortium Rs.10,000/-
iv) Loss of estate Rs.10,000/-
v) Funeral expenses Rs. 5,000/-
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TOTAL Rs.12,18,128/-
5. The Tribunal had assessed the income based on minimum wages for
an unskilled workman which on the date of the accident were Rs.7,020/- per
month. The Tribunal awarded 30% enhancement in the said income on
account of inflation/future prospects. Further, 1/3rd was deducted towards
personal expenses. Taking the multiplier of 16, based on the age of deceased
being 32 years at the time of the accident, the Tribunal calculated the loss of
dependency as Rs.11,68,128/-.
6. Learned counsel appearing for the appellant has made two
submissions for the enhancement of the amount awarded by the Tribunal.
He firstly submits that at least 50% enhancement in income ought to have
been made on account of future prospects while assessing the loss of
dependency instead of 30% according to the age of the deceased at the time
of the accident. He secondly submits that non-pecuniary damages on
account of loss of consortium, love and affection and funeral expenses have
been given on the lower side.
7. On the issue of future prospects, I can take judicial note of the fact
that minimum wages for an unskilled worker in 2002 were Rs 2679.70/-
P.M. and in 2012 were Rs.7020/- P.M. It is obvious that the prescribed
minimum wages have more than doubled in ten years.
8. In 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.
9. 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.
10. 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. In view of the above, age of the deceased at the time of the accident
being 32 years, 50% should be added for future prospects.
12. Accordingly, the loss of dependency amounts to Rs. 13,47,840/-
[(7,020 + 50% - 1/3) x 12 x 16].
13. Coming now to the second submission of non-pecuniary heads being
on the lower side, on the issue of loss of consortium the Supreme Court in
the case of Rajesh & Ors. vs. Rajbir Singh & Ors. (supra) noted as
follows:-
"20. .... 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 rupees one
lakh for loss of consortium."
14. In the case above, the Supreme Court awarded `1,00,000/- for loss of
consortium.
15. On the head of funeral expenses, the Supreme Court in the said
judgment noted that the funeral expenses did not mean only the fee paid for
the use of space in the cemetery. There are various expenses involved
including several religious practices, conventions, etc. All those are quite
expensive.
16. Hence, the Court was of the view that in the absence of any evidence
to the contrary for higher expenses, funeral expenses of at least `25,000/-
should be awarded.
17. Keeping in view the observations of the Supreme Court, I also
increase the Award for funeral expenses from `5,000/- to `25,000/-.
18. For the loss of love and affection, keeping in view the ratio of the
judgment of the Supreme Court in the cases of Rajesh & Ors. vs. Rajbir
Singh & Ors.(supra) and Yeramma & Ors. vs. G. Krishnamurthy & Anr.,
2014 (10) SCALE 213, I enhance the compensation for loss of love and
affection from Rs.10,000/- to Rs.1,00,000/-.
19. Hence, the total compensation payable amounts as follows:
i) Loss of dependency Rs.13,47,840/-
ii) Love and affection Rs. 1,00,000/-
iii) Loss of consortium Rs.1,00,000/-
iv) Loss of estate Rs. 10,000/-
v) Funeral expenses Rs. 25,000/-
----------------
TOTAL Rs.15,82,840/-
20. The enhanced amount as per the order today shall be deposited by the
Insurance Company within four weeks from today along with interest @
7.5% per annum from the date of filing of the claim petition till deposit in
Court. On receipt of the amount, the same shall be released in favour of the
claimants proportionately as per the directions in the Award.
21. The appeal stands disposed of.
JAYANT NATH, J
SEPTEMBER 30, 2014
sh
