Delhi High Court
Oriental Insurance Co Ltd vs Ms Milly Das Gupta & Ors on 7 January, 2015
Author: G.P. Mittal
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th January, 2015
+ MAC.APP. 1069/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. J.P.N. Shahi, Advocate
versus
MS MILLY DAS GUPTA & ORS ..... Respondents
Through: Mr. Amit Baisoya, Advocate for
Respondents no.1 & 2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This appeal is directed against the judgment dated 14.09.2011 passed
by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby compensation of Rs.15,09,902/- along with interest @ 7.5%
per annum was awarded to the claimants.
2. There is twin challenge to the impugned judgment with regard only to
the quantum of compensation.
3. The appeal relates to the death of Ms. Enakashi Das Gupta, who was a
young girl, aged 22 years, B.Sc. (Airlines Tourism and Hospitality
Management) obtained from Punjab Technical University. The
deceased was working as a Hospitality Assistant. The deceased was
getting a salary of Rs.12,198/- per month. Since the deceased was
employed in hospitality industry, i.e. Hotel Radisson, she was also
being given tips.
4. The learned counsel for the Appellant urges that tips ought not to have
been taken as part of the income and consequently, since the deceased
was not in permanent job, addition of 50% towards future prospects
was unjustified.
5. I am not inclined to agree with the submissions raised on behalf of the
Appellant. The Claims Tribunal dealt with the issue of dependency,
payment of tips and future prospects in paras 10 to 13 of the impugned
judgment which are extracted hereunder:-
"10. The deceased Enakshi Dass Gutpa was 22 years
old and age of her parents at the time of accident
(13.08.2010) was, father 57yers and mother 45 years.
The deceased after her schooling joined B.Sc (Airlines
Tourism & Hospitality Management in an instituted at
Chandigarh affiliated to Punjab Technical University.
She passed her degree in the year 2009 and joined
Radisson Hotels Delhi (AB Hotels Ltd.) from 15th April
2009 which is confirmed by PW2, Sh. Yogesh Wadhawan,
Director, Human Resource of the employer hotel. It has
been further deposed by this witness that the deceased
was drawing gross salary of Rs.12,198 and over this
income she was entitled to tips as hospitality associate in
Food & Beverages Service Department. The salary of the
deceased is also supported by a certificate (Ex.PW1/20)
issued by the employer. The fact of tips is supported
from pay slips of the months below:
Month Tips earned Exhibit
April, 2010 2810 Ex.PW1/15
May, 2010 2800 Ex.PW1/16
June, 2010 3146 Ex.PW1/17
July, 2010 2908 Ex.PW1/18
August, 2010 1787 Ex.PW1/19
11. It can be seen from the above that the earning of
Tips by the persons employed in hospitality industry is
usual income and most of the employers pay salary
considering that the employees would also earn by way
of tips. The pay is fixed taking into account earnings
from tips, thus the argument of the respondent that tips
should not be taken into account while considering the
salary is not accepted. Hon'ble SC in a recent case
Shyamvati Sharma and Ors. Vs. Karan Singh and Ors.
2010 (112) SC 378 has observed that all items form part
of salary. It is clear from the above that a sum of
Rs.2700/- on average basis is fair to be added to the
monthly income on account of tips and thus the earning
of the deceased is arrived at Rs.12198 plus 2700 equal to
Rs.14,898/-.
12. It cannot be lost sight that the deceased was a
young professional likely to progress in her life. Sh.
Yogesh Wadhawan, Director, Human Resource of the
employer hotel appearing as PW2 deposed that had the
deceased Enakshi Dasgupta alive after 15 years of job,
the deceased with these qualification could easily have
commended a salary of Rs. Four to five lakhs per month.
She could have become an General manager of the hotel.
In the case of Sarla Verma Vs. DTC, the Hon'ble Court
has laid down that in the case of the deceased is a
permanent employee of the age below 40 years in such
cases 50% of actual salary minus taxes would be added
to the income towards future prospects. The deceased
Enakshi was permanent employee of Hotel Raddison and
by applying the same yard stick, the income of the
deceased would be further increased by 50% and is taken
at Rs.22,347/- (Rs.14,898/- plus 50% of 14898). These
monthly emoluments converted into annual income by
multiplying with 12 which gives figure of Rs.2,68,164 and
as per prevalent income tax rates and possible saving
exemption it would not attract any tax. The age of father
as per record is 57 years and age of mother as per
record is 45 years so the average age would be 51 and
hence multiplier of 11 is applicable. So, the loss of
dependency is computed as `29,49,804/-.
13. The deceased was bachelor and left behind his
parents hence after deducting one half towards personal
expenses, the loss of dependency would come out to be
Rs.14,74,902/-."
6. The Claims Tribunal rightly noticed that payment of tips in hospitality
industry is a part of the regular income. The deceased was well
qualified having obtained B.Sc. in Hospitality Management from a
reputed Institution. She was in regular employment and was bound to
have good future prospects. Grant of future prospects is in
consonance with Sarla Verma (Smt.) & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 and Reshma Kumari & Ors. v.
Madan Mohan & Anr., (2013) 9 SCC 65.
7. The appeal is devoid of any merit; the same is accordingly dismissed
with costs. Counsel fees is assessed at Rs.11,000/-.
8. Pending applications, if any, also stand disposed of.
9. The statutory amount shall be refunded after payment of costs to the
counsel for the Respondents and on filing of receipt in respect thereof.
(G.P. MITTAL)
JUDGE
JANUARY 07, 2015/vk
