Delhi High Court
New India Assurance Co Ltd. vs Khayali Ram Chaturvedi & Ors. on 24 January, 2017
$~11 to 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 24, 2017
(i) + MAC.APP. 251/2014
(ii) + MAC.APP. 252/2014
(iii) + MAC.APP. 253/2014
(iv) + MAC.APP. 254/2014
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Advocate
versus
(i) & (ii) KHAYALI RAM CHATURVEDI & ORS
(iii) OM WATI & ORS
(iv) KAMLESH DEVI & ORS
.....Respondents
Through: Mr. Anshuman Bal, Advocate for
respondents-claimants (except in
MAC. APP.254/2014)
Ms. Jyoti Rajouriam, Advocate for
respondents-claimants (in MAC.
APP.254/2014)
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned Award of 10th December, 2013 grants compensation
of `11,37,600/- with interest @ 9% per annum to Khayali Ram on
account of death of his wife-Gayatri Chaturvedi aged 50 years and
compensation of `68,205/- with interest on account of injuries suffered
by him in a road accident on 10th May, 2010. Compensation of
`6,72,040/- with interest has been also granted to Omwati on account of
death of her husband-Rajinder Prasad aged 59 years and compensation of
`13,75,048/- with interest has been granted to Kamlesh on account of
death of her husband-Ranveer aged 35 years in the road accident in
question. The above-captioned four appeals are directed against common
impugned Award and so, with the consent of learned counsel for the
parties, the above captioned four appeals have been heard together and
are being disposed of by this common judgment.
The factual background of this case already stands noted in detail
in impugned Award and so, needs no reproduction. Suffice to note that
the accident in question is result of a head-on collision between a bus in
which the deceased/injured were travelling and a truck, which was
coming from the wrong side from opposite direction. The issue of
negligence stands decided by learned Tribunal in impugned Award while
relying upon the evidence of Khayali Ram (PW-3) and Shyam Sunder
(PW-4) and it has been held by learned Tribunal that the negligence was
on the part of truck driver, who was driving it at 100 KMs per hour.
In the above-captioned four appeals, it is evident from order of 31 st
July, 2014 that respondents No.1 to 6 and 8 were duly represented and
none had appeared on behalf of respondent No.7 despite service. As per
order of 31st July, 2014, service is complete in the above-captioned four
appeals. While relying upon the evidence of injured and legal heirs of
deceased, learned Tribunal has rendered the impugned Award. It is
pertinent to note that appellant-insurer had not led any evidence before
learned Tribunal.
Learned counsel for appellant-insurer assails impugned Award on
the ground that instant case is of contributory negligence. To submit so,
attention of this Court is drawn to evidence of Khayali Ram (PW-3) to
point out that the speed of bus in question was around 80 KMs per hour
and so, it cannot be said that the negligence was of the truck driver.
According to learned counsel for appellant-insurer, the bus driver had an
opportunity to avert the accident and so, the contributory negligence was
in the ratio of 50:50. Reliance is placed upon Supreme Court's decision in
Bijoy Kumar Dugar v. Bidya Dhar Dutta and Others, (2006) 3 SCC 242
wherein the vehicle was driven in a zigzag manner and so, it was held to
be a case of contributory negligence.
On the quantum of compensation awarded, it is submitted by
learned counsel for appellant-insurer that Gayatri (since deceased) was a
housewife and there was no financial loss suffered by her legal heirs on
account of her death because her daughters-in-law are doing household
chores. It is submitted by learned counsel for appellant-insurer that
Supreme Court in Arun Kumar Aggarwal and Another v. National
Insurance Company Ltd. and Others, (2010) 9 SCC 218, while dealing
with a case of a housewife, has on the basis of income of husband of
deceased, assessed the income of housewife (deceased) by taking it to be
1/3rd of her husband's income. It is pointed out that Khayali Ram-
husband of deceased was earning `10,000/- per month and while relying
upon the ratio of Arun Kumar (supra), the income of housewife, who had
unfortunately died in this accident, ought to be assessed at `3,000/- per
month. To submit so, reliance is placed upon Supreme Court's decision in
Lata Wadhwa and Others v. State of Bihar and Others, (2001) 8 SCC
197. Further, it is submitted that in view of Supreme Court's decision in
Jitendra Khimshankar Trivedi and Others v. Kasam Daud Kumbhar and
Others, (2015) 4 SCC 237, 1/3rd has to be deducted towards personal
expenses and so, the compensation granted to legal heirs of housewife-
Gayatri deserves to be suitably reduced.
Grant of future prospects to legal heirs of deceased-Rajinder
Prasad and Ranveer is assailed by learned counsel for appellant-insurer
on the ground that their income has been assessed on minimum wages
and so, they are not entitled to grant of any compensation under the head
of "loss of future prospects". To submit so, reliance is placed upon
Supreme Court's decision in Reshma Kumari and Others v. Madan
Mohan and Anr., 2013 (5) SCALE 160.
On the contrary, learned counsel for respondents-claimants support
the impugned Award and submit that the decision in Arun Kumar (supra)
has been considered by Supreme Court in a later decision in Jitender
(supra) wherein the income of husband has not been made the basis to
assess the income of housewife and so, adoption of minimum wages in
the instant case is justified. Regarding the deduction of 1/3rd towards
personal expenses, it is submitted by learned counsel for respondents-
claimants that Supreme Court in Lata Wadhwa (supra) has not deducted
1/3rd towards personal expenses and rightly so, and thus, there is no
justification to so do in the instant case. It is submitted by learned counsel
for respondents-claimants that learned Tribunal has rightly relied upon a
later decision of Supreme Court in Rajesh and Others v. Rajbir Singh and
Others, (2013) 9 SCC 54 wherein 50% addition has been made towards
future prospects and so, impugned Award does not deserve to be
interfered with. Nothing else is urged by either side.
Upon hearing and on perusal of impugned Award, the decisions
cited and the evidence on record, I find that on the aspect of contributory
negligence, evidence of Khayali Ram (PW-3) is not of much avail
because he has disclosed in his evidence that he woke up after the
accident in question. However, there is evidence of Shyam Sunder (PW-
4), who had categorically deposed that the negligence was entirely on the
part of the truck driver as he was driving it at 100 KMs per hour. The
decision in Bijoy Kumar Dugar (supra) is distinguishable on facts as in
the instant case, even if it is taken that the bus was moving at 80 KMs per
hour, still no contributory negligence can be attributed to the bus driver
for the reason that the truck in question was coming from the wrong side.
In the aforesaid view, I find that there is no contributory negligence on
the part of bus driver.
On the quantum of compensation, I find that Gayatri (since
deceased) was a housewife aged 50 years and that Khayali Ram (PW-3)
has hardly said anything about the financial loss suffered on account of
death of his wife, who was doing household work, and that it has come in
the evidence of this witness (PW-3) that he was earning `10,000/- per
month. Although it has come in the cross-examination of this witness
(PW-3) that after the death of his wife, his daughters-in-laws are doing
household works but it does not mean that she was not doing any
household work. Supreme Court in Jitendra (supra) has considered its
earlier decision in Arun Kumar (supra), but has not proceeded to assess
the income of housewife by taking it to be 1/3rd of husband's income. So,
in this background, adoption of minimum wages to assess the income of
Gayatri, a housewife, who has unfortunately died in this accident,
appears to be just and proper. However, in view of Supreme Court's
decision in Jitender (supra), 1/3rd towards personal expenses has to be
deducted.
The minimum wages taken by Tribunal is of a non-matriculate
worker. In the considered opinion of this Court, a housewife ought to be
considered as a skilled worker as she is cooking the meals and is doing
household chores round the clock. The minimum wages for a skilled
worker in the year 2013 were `6448/-. After deducting the 1/3rd towards
personal expenses, the notional income of the housewife-Gayatri (since
deceased) is taken to be `4298.66/-, which is rounded off to `4300/-.
Since the age of deceased (Gayatri) was 50 years as per her Election
Identity Card, therefore, adoption of multiplier of 13 is also just and
proper. The compensation granted to legal heirs of deceased (Gayatri) is
reassessed as `6,70,800/-. The grant of non-pecuniary damages to legal
heirs of deceased (Gayatri) appears to be reasonable and just and is
accordingly maintained. Thus, compensation granted to legal heirs of
deceased-Gayatri is reduced from `11,37,600/- to `6,70,800/-.
So far as addition of 50% towards future prospects in the case of
claimant-Kamlesh and 15% in the case of claimant-Omwati is concerned,
I find that the dependency has been worked out by adopting the minimum
wages as they were not in permanent employment and so, addition of
50% and 15% towards future prospects in case of claimants-Kamlesh and
Omwati respectively is unjustified in view of Supreme Court's decision in
Reshma Kumari (supra). No doubt, Supreme Court in its later decision in
Rajesh (supra) has granted 50% towards future prospects in a case of
self-employed persons or person engaged on fixed wages but in view of
Supreme Court's decision in Union of India and Others v. S.K. Kapoor,
(2011) 4 SCC 589, the earlier decision of Supreme Court of the same
strength prevails. Learned Tribunal has erred in relying upon a later
decision of Supreme Court in Rajesh (supra) perhaps for the reason that
the earlier decision of Supreme Court in Reshma Kumari (supra) of same
strength was not brought to its notice.
Be that as it may. The dictum of Supreme Court in Reshma Kumari
(supra) prevails and in view thereof, any addition made towards future
prospects in the instant case is unjustified. While disallowing the grant of
future prospects of 50% in the case of Kamlesh Devi, the compensation
awarded is reduced from `13,75,048/- to `9,85,100/-.
In case of claimant-Omwati, after deducting 15% addition towards
future prospects, the notional income is taken to be `63,336/- and after
deducting 1/3rd towards personal expenses, the income of Rajinder
Prasad (since deceased) is re-assessed as `42,224/- and by adopting
multiplier of 9, the total dependency is reassessed as `3,80,016/-, which
rounded off to `3,80,100/-. After adding `2,35,000/- under the head of
non-pecuniary damages, the compensation payable to claimant-Omwati is
reassessed as `6,15,100/-. Accordingly, the compensation awarded is
reduced from `6,72,040/- to `6,15,100/-.
In the light of the aforesaid, impugned Award is accordingly
modified while maintaining the compensation granted to claimant-
Khayali Ram on account of injuries suffered by him. During the pendency
of these appeals, vide order of 21st March, 2014, it was directed that 60%
of the awarded compensation be released to respondents-claimants as per
the impugned Award. Learned counsel for respondents-claimants submits
that the aforesaid order has been complied with. In view thereof, the
excess compensation amount deposited by appellant with the Registrar
General of this Court be remitted back to appellant. In terms of this
judgment, the balance amount of deposited compensation, if any, be
released to respondents-claimants directly into their bank accounts. The
statutory deposit, if any, made by appellant-insurer be refunded as per
Rules.
With aforesaid directions, the above-captioned four appeals are
disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 24, 2017
s
