Delhi High Court
New India Assurance Co. Ltd vs Chhoti Devi & Ors on 23 October, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 23.10.2019
+ MAC.APP. 938/2017 & CM APPL. 38660/2017
NEW INDIA ASSURANCE CO. LTD ..... Appellant
Through: Mr. Salil Paul and Mr. Sahil Paul,
Advocates.
versus
CHHOTI DEVI & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This appeal impugns the award of compensation dated 05.08.2017
passed by the learned MACT in Suit No.57686/16 on the ground that 1/3rd
deduction towards 'personal expenses' on the earnings of the deceased has
been wrongly applied, because of the three claimants, only his surviving
spouse should have been considered as a dependent. The other claimants
were his married daughter and two major sons.
2. The learned Tribunal reasoned that since the daughter was married,
she would not be deemed to be dependent upon her father. The two sons,
being 28 and 23 years old too, were not be considered as dependent upon the
deceased. Only the widow of the deceased was considered as a dependent.
3. It is argued that as a corollary, half of the earnings of the deceased
ought to have been deducted, instead of 1/3rd.
4. The 23 year old son was stated to be a student and financially
dependent upon his father. The said contention was rejected in the absence
of any documentary proof in this regard. The respondents contend that
relevant documents did exist, but due to lack of proper guidance, the same
could not be adduced. The respondents seek one more opportunity to lead
the relevant evidence. The Court is of the view that, lest rightful claim of the
claimants be irreparably prejudiced because of non-furnishing of requisite
documents and relevant information, as may be available, apropos the claim
of 23 year old son that he was a student, the case is remanded to the learned
Tribunal for re-adjudication of this issue only. The impugned order is
modified accordingly.
5. The learned counsel for the appellant further submits that there is no
deduction made towards income tax in the computation of loss of
dependency. The learned counsel for the respondents submits that the
requisite TDS has already been made and no further deductions were
required to be made. Be that as it may, these issues shall be duly dealt with
by the learned Tribunal in the remand.
6. The learned counsel for the appellant seeks deduction of Metro
Allowance, on account of it being personal to the deceased. The learned
counsel for the respondents fairly agrees that it was personal to the deceased.
Deduction on this allowance shall, therefore, be made from the carry home
amount.
7. Transport allowance, washing allowance and ration money could be
used for the benefit of the entire family therefore they will not be regarded
as specific to the employee. Deduction of these amounts cannot be made and
would be included in the amount of dependency. Accordingly, deductions
under these heads are rejected.
8. Each of the claimants have been granted Rs. 1,00,000/- towards 'loss
of love and affection'; while a lumpsum of Rs. 1,00,000/- has been granted
as compensation towards 'loss of consortium'. However, in terms of the
dicta of the Supreme Court in Magma General Insurance Co. Ltd. vs.
Nanu Ram @ Chuhru Ram & Ors., 2018 SCC OnLine SC 1546, each of
the claimants would be entitled to and are granted non-pecuniary damages of
'Loss of love and affection' and 'Loss of consortium' @ Rs. 50,000/- and
Rs. 40,000/- respectively. The deceased has 4 survivors, his widow, married
daughter and two sons. Each one of them would feel the absence of his
consortium and his love and affection and would be entitled to the same.
Therefore, the total amount payable towards the aforesaid two heads would
be (Rs. 50,000/-x4= Rs. 2,00,000/- and Rs. 40,000/-x4= Rs. 1,60,000/-) Rs.
3,60,000/- and not Rs. 1,00,000/-. Furthermore, a sum of Rs. 35,000/- has
been granted for 'funeral expenses' and 'loss of estate', in terms of decision
of Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi & Ors.,
(2017) 16 SCC 680, the compensation for each of the aforesaid heads shall
be Rs. 15,000/- i.e. a total of Rs. 30,000/-. It is so ordered.
9. The case is remanded to the learned Tribunal for determination of
'loss of dependency' apropos the younger son. The parties shall appear
before the learned Tribunal on 17.12.2019. The learned counsel for the
parties submit that since the issue of determination is very limited, they shall
request the learned Tribunal to dispose-off the case preferably within a
period of six months and shall assist the Court on every date when the case
is so listed.
10. The parties shall lead evidence in support of their contentions.
11. The statutory amount, alongwith interest accrued thereon, be returned
to the appellant.
NAJMI WAZIRI, J
OCTOBER 23, 2019/AB
