Delhi High Court
Shashi Gulati & Ors vs Tata Aig General Insurance Co Ltd & ... on 17 January, 2017
$~8 & 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 17, 2017
(i) + MAC.APP. 1012/2013
TATA AIG GENERAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Akshay Bhandari and Ms.
Meenakshi Midha, Advocates
versus
SHASHI GULATI & ORS .....Respondents
Through: Mr. Rajesh Kaushik, Advocate for
respondents No.1 to 3
(ii) + MAC.APP. 53/2017
SHASHI GULATI & ORS .....Appellants1
Through: Mr. Rajesh Kaushik, Advocate
versus
TATA AIG GENERAL INSURANCE CO LTD & ANR
.....Respondents
Through: Mr. Akshay Bhandari and Ms.
Meenakshi Midha, Advocates
respondent-insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M.42720/2016 (delay) & MAC.APP. 53/2017
There is delay of 1114 days in filing the accompanying application
to place on record the cross-objections.
Notice.
Mr. Akshay Bhandari, Advocate accepts notice on behalf of
insurer.
Upon hearing, I find that averments made in paragraph No.1 of the
instant application, which is duly supported by affidavit on record,
provide sufficient cause to condone the delay occasioned. The application
is allowed and the delay stands condoned.
The application is disposed of while taking on record the cross-
objections.
MAC.APP. 1012/2013
MAC.APP. 53/2017
The above-captioned two appeals are directed against common
impugned Award of 17th August, 2013 vide which compensation of
`19,12,120/- with interest has been awarded to the claimants on account
of death of one Subhash Chander Gulati, who had died due to injuries
sustained in a road accident on 3rd November, 2005. In the above-
captioned first appeal, insurer assails the impugned Award on the ground
that deceased was aged 58 years and so, addition of 50% towards 'future
prospects' is unjustified. Whereas in the above-captioned second appeal,
which is in the shape of cross-objections, enhancement of compensation
is sought by claimants, who assert that the income of deceased ought to
have been taken as `22,000/- odd as per his salary certificate and not
`16,000/- odd.
The break-up of compensation granted by learned Tribunal is as
under: -
S. No. On account of Amount (Rs.)
1. Loss of dependency `18,24,120/-
2. Loss of consortium `10,000/-
3. Towards medical bills Nil as reimbursed from
the Department
3. Loss of love and affection `25,000/-
4. Loss of estate `10,000/-
5. Funeral expenses `10,000/-
6. Room Rent `33,000/-
Total `19,12,120/-
The factual background of this case already stands noted in the
opening paragraph of the impugned Award and so, needs no
reproduction. Suffice to note that the deceased was aged 58 years at the
time of this accident and as per his salary certificate, he was drawing
gross salary of `22,384/- per month and after deductions, his net salary
was `16,218/- per month.
Learned counsel for insurer contends that the net salary has been
rightly taken into account to assess 'loss of dependency', but learned
Tribunal has erred in adding 50% towards 'future prospects' as there is
no evidence on record to show that any promotion or financial benefit
was due to deceased. It is submitted that within two years, deceased
would have retired and in such a situation, `500/- towards increment has
been already taken into consideration by learned Tribunal and so, grant of
'future prospects' is wholly unjustified.
On the other hand, learned counsel for respondents-claimants
submits that in view of decision in K.R. Madhusudhan and Others v.
Administrative Officer and Another, (2011) 4 SCC 689, 'future prospects'
are to be granted even if deceased is aged more than 50 years and so, the
addition of 50% towards 'future prospects' is very well justified.
To seek enhancement of compensation, learned counsel for
respondents-claimants has drawn the attention of this Court to the salary
certificate of deceased to submit that 'loss of dependency' is required to
be calculated while taking into account the income of deceased as
`22,000/- odd as disclosed by the salary certificate and the compensation
awarded needs to be suitably enhanced. To submit so, reliance is placed
upon Supreme Court's decision in Sunil Sharma and Others v. Bachitar
Singh and Others, (2011) 11 SCC 425. Nothing else is urged by either
side.
Upon hearing and on perusal of impugned Award and the evidence
on record as well as the decisions cited, I find that no evidence has been
led by claimants to show that had deceased lived upto the age of his
retirement there would have been any definite rise in income. It is also
not shown that any financial benefits would have accrued to the deceased
during the period of remaining two years of his service.
Supreme Court in K. R. Madhusudhan (supra) has reiterated that
after the age of 50 years, addition towards 'future prospects' can be made
only if concrete evidence is on record. Since no such evidence is on
record, therefore, addition of 50% towards 'future prospects' by learned
Tribunal is unjustified. So, addition of `8,445/- towards 'future
prospects' is excluded. The salary certificate of deceased reveals that his
gross salary was of `22,384/- per month and after deductions, it was
`16,218/- per month. Supreme Court in its decision in Sunil Sharma
(supra) has reiterated that no deduction on account of HRA, CCA and
Medical Allowances is to be made while calculating the income of
deceased. So, in the instant case, statutory deductions of `6,166/- in the
case of deceased have been erroneously excluded.
In the aforesaid view, the salary of deceased is taken as `22,384/-
per month and after deducting 1/3rd towards personal expenses, it comes
to `14,923/- per month. Thus, the 'loss of dependency' is taken as
`16,11,684/- (`14,923/- X 12 X 9), which is rounded off to `16,11,700/-.
The compensation granted by learned Tribunal under the 'Non-
pecuniary' heads appears to be on lower side. The courts are under legal
obligation to award just and fair compensation. Accordingly, the
compensation under the head of 'loss of consortium' is enhanced from
`10,000/- to `50,000/-. Similarly, compensation granted under the head
of 'loss of love and affection' is enhanced from `25,000/- to `50,000/-
and compensation under the head of 'loss of estate' is enhanced from
`10,000/- to `30,000/-. Funeral expenses are also enhanced from
`10,000/- to `25,000/-. However, the compensation awarded towards
'room rent' is maintained. Thus, modified compensation payable to the
claimants is as under: -
S. No. On account of Amount (Rs.)
1. Loss of dependency `16,11,700/-
2. Loss of consortium `50,000/-
3. Towards medical bills Nil as reimbursed from the
Department
3. Loss of love and affection `50,000/-
4. Loss of estate `30,000/-
5. Funeral expenses `25,000/-
6. Room Rent `33,000/-
Total `17,99,700/- rounded off to
`18,00,000/-
The modified compensation payable as per this judgment would be
in the same ratio and the manner as provided in the impugned Award
after adjusting the 80% of the awarded amount, if already paid to
claimants in terms of order of 8th November, 2013. The excess amount
deposited by insurer alongwith the statutory deposit be refunded to
insurer.
With aforesaid modification, the above-captioned two appeals are
disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 17, 2017
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