Delhi High Court
Oriental Insurance Company vs Ishrawti & Ors. on 16 November, 2016
$~R-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 16, 2016
+ MAC.APP. 333/2009
ORIENTAL INSURANCE COMPANY ..... Appellant
Through: Mr. Onkar Nath, Advocate
versus
ISHRAWTI & ORS. .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned Award of 15th May, 2009 grants compensation of
`12,53,820/- with interest to the legal heirs of deceased-Bechu Prasad
aged 52 years, who had sustained fatal injuries in a road accident on 22 nd
November, 2003. At the time of the accident, the deceased was working
as a Head Constable in Delhi Police and was earning around `10,000/-
per month.
The factual background of this case is not in dispute and hence, it
needs no reproduction.
Learned counsel for appellant submits that contesting respondents
no. 1 to 4 and 7 & 8 are duly represented and it is so evident from the last
order. The power of attorney/vakalatnama of learned counsel for
contesting respondent is not on record. In such a situation, it is deemed
appropriate to decide the appeal on merits, as issuance of court notices to
respondents, who are already served, would unnecessarily delay the
decision in this appeal, which is more than seven years old.
The challenge to the impugned Award by learned counsel for
appellant is on the ground that „future prospects‟ cannot be presumed and
the income of deceased could not have been doubled, as has been done by
learned Tribunal. Reliance is placed upon Supreme Court's decision in
Reshma Kumari and Others v. Madan Mohan and Another, (2013) 9 SCC
65 wherein addition of 50% to the actual salary was made towards „future
prospects‟ where the deceased had a permanent job and was below the
age of 40 years. Thus, it is submitted that the grant of „future prospects‟ is
wholly unjustified. Lastly, it is submitted that the grant of `10,000/-
towards the „funeral expenses‟ is on the higher side and it should be
`5,000/- per month and the awarded amount deserves to be suitably
reduced. Nothing else is urged on behalf of appellant.
Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that the observations made by learned
Tribunal in the impugned Award to the effect that „future prospects‟ are
inherent is unjustified as „future prospects‟ cannot be presumed. It is true
that in view of the decision of Supreme Court in Reshma Kumari (supra),
no addition should be made towards „future prospects‟ where the age of
deceased is more than 50 years. However, the inflation aspect and the
income of a permanent government employee has to be considered till the
age of his retirement. Learned Tribunal has erred in holding that the
deceased would have been earning while in government service for a
period of 11 years because while taking the age of the deceased to be 52
years, at the time of the accident, it had to be kept in mind that his
remaining service would not have been more than eight years. Infact,
learned Tribunal has not added any percentage towards the „future
prospects‟ and has assessed the average annual dependency while relying
upon Supreme Court's decision in Sarla Dixit v. Balwant Yadav, AIR
1996 SC 1274 and General Manager, Kerala State Road Transport
Corporation v. Susamma Thomas & Others, (1994) 2 SCC 176. The
reasoning adopted by learned Tribunal is as under: -
"........Taking into account the method laid down in
Sarla Dixit v. Balwant Yadav, AIR 1996 SC 1274 and
General Manager, Kerala State Road Transport
Corporation v. Susamma Thomas & Others, the income of
the deceased at the time of his death should be minimum be
doubled so as to get the income which he would have been
earning after 11 years. Thus this figure comes out to
Rs.19,376/-. Now, the average of these two have to be taken
for assessing the average income of the deceased. It comes
out to Rs.14,532/-. Out of this 1/3rd is required to be
deducted on account of personal expenses of the deceased.
Thus, after deducting Rs.4,844/- on account of personal
expenditure the average annual dependency to the
petitioners come to Rs.14,532/- - Rs.4,844/- = Rs.9,688/- X
12 = Rs.1,16,256/-."
The only calculation error in the reasoning adopted by the learned
Tribunal is that instead of 8 years, period of 11 years has been taken. In
any case, this error of calculation would not be material because in
financial terms, there would be not much difference in the amount
assessed and so, in the peculiarity of this case, this Court is not inclined to
reduce the awarded amount.
Regarding the funeral expenses, this Court finds that grant of
`10,000/- towards the „funeral expenses‟ is not unjustified. On the
aforesaid reasoning, impugned Award is not interfered with.
This appeal is accordingly disposed of while making it clear that
this judgment will not be treated as a precedent as it is rendered in
peculiarity of this case.
(SUNIL GAUR)
JUDGE
NOVEMBER 16, 2016
s
