Delhi High Court
Prabhawati Devi And Ors vs Sanjeev Kumar Jha And Ors on 9 September, 2022
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 23.08.2022
Pronounced on: 09.09.2022
+ MAC.APP. 363/2013 and C.M. No. 6570/2013
PRABHAWATI DEVI AND ORS ..... Petitioner
Through: Mr. S.N. Parashar, Advocate.
versus
SANJEEV KUMAR JHA AND ORS ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate
for respondent No. 3/ IFFCO-
Tokio General Insurance.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGEMENT
GAURANG KANTH, J.
1. The present appeal has been preferred by the Appellants under
Section 173 of the Motor Vehicles Act for enhancement of
compensation amount awarded by the Court of learned
Presiding Officer, Motor Accident Claims Tribunal, South East
District/Saket Courts, New Delhi in Suit No. 327/2010 vide its
Award dated 20.09.2012.
2. The learned Tribunal vide its impugned Award dated
20.09.2012 held Respondent No. 3 herein/Insurance Company
of the car liable to pay compensation to the Appellants. The
relief granted by the learned Tribunal is as under: -
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1. Loss of Dependency Rs. 7,48,800/-
2. Loss of Love and Affection Rs. 25,000/-
3. Funeral Expenses Rs. 10,000/-
4. Loss of Estate Rs. 10,000/-
5. Loss of consortium Rs. 10,000/-
Facts of the case
3. Brief facts of the case as noted by the learned Motor Accident
Claims Tribunal are as under: -
"On 11.02.10, the deceased was standing with his
motorcycle bearing no. DL 38 BL 9905. He was
waiting at the gate of RTO Office, Vasant Vihar to meet
the RTO Officials. At about 10.00 AM a car bearing no.
DL 30 BD 2733 being driven by respondent no.1 in a
rash and negligent manner came at a fast speed from
the side of Nelson Mandela Marg and took a sharp U-
Turn. Respondent no.1 could not control the car, hit the
motorcycle of the deceased and ran over him. He was
taken to Trauma Centre, AllMS by a Constable in a
private car where he was declared brought dead.
Respondent no.2 was the owner of the car and it was
insured with respondent no.3. A case was registered
vide FIR 44/10 at the police station Vasant Vihar. SHO
of the police station Vasant Vihar filed a Detailed
Accident Report. It was clubbed with the petition filed
on behalf of the petitioners. In the report, the
Investigating Officer had verified the driving license of
the respondent no.1 and also filed the copy of the
charge sheet containing the postmortem report and
other documents as per which the cause of death was
shock due to multiple injuries produced by blunt force
object"
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4. The learned Tribunal awarded compensation of Rs. 8,03,800/-
in favour of the claimants and directed Respondent No. 3/
Insurance Company to deposit the said amount with interest @
9 % per annum from the date of filing of the petition till
realization. Against the impugned Award, the present Appeal is
preferred.
Submissions of the Appellants
5. Mr. S. N. Parashar, learned counsel for the Appellants
contended that the learned Tribunal has erred in not assessing
the income of the deceased as per his vocation. He further
contended that deceased was 27 years of age and at the time of
accident, he was pursuing MBA final year from Sikkim
Manipal University. While pursuing his MBA he was working
in a private company and was earning Rs. 8,000/- per
month. Learned counsel further contended that the deceased
has appeared for his final year MBA examination and has
received an appointment letter for the post of Assistant
Manager, Finance on a monthly salary of Rs. 30,000/- per
month. He further contended that the appointment letter has
been filed as Ex. PW-1/17, however, the learned Tribunal
without taking into account the appointment letter, computed
the head „Loss of dependency‟ on the basis of proved salary of
Rs. 8,000/- which is arbitrary and in contravention of the law
laid down by the Hon‟ble Supreme Court in the case of
AshvinBhai JayantiLal Modi Vs Ramkaran Ramchandra
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Sharma reported as 2014 (11) SCALE 427. Learned counsel
also relied upon the judgment of this Court dated 07.03.2018
passed in MAC.APP. 376/2017 titled as Bharti AXA Gen.
Insurance Co. Ltd. Vs Upender Kumar Shastri.
6. Learned counsel for the Appellants further contended that in
terms of the dicta of Hon'ble Supreme Court in National
Insurance Co. Ltd Vs Pranay Sethi &Ors reported as 2017
AIR (SC) 5157, an addition of 40% of the established income
should be granted under the head „Future Prospects‟, however,
the learned Tribunal erred in making an addition of 30% of the
established income of the deceased.
7. Learned counsel for the Appellants further contended that the
learned Tribunal erred in applying the multiplier of 9 according
to the age of the mother of the deceased to compute the loss of
dependency. Learned counsel contended that in terms of the
dicta of Hon‟ble Supreme Court in Pranay Sethi (supra),
multiplier has to be applied in accordance with the age of the
deceased instead of the age of the mother of the deceased and
accordingly the multiplier to compute the loss of dependency
should be 17.
8. Learned counsel further relied on the case of United India
Insurance Company Limited V Satinder Kaur Alias
Satwinder Kaur and Ors. reported as (2021) 11 SCC 780
towards „Loss of Filial Consortium', 'Loss of Estate' and
'Funeral Expenses'.
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Submissions of Respondent No. 3/ Insurance Company
9. Mr. J. P. N. Shahi, learned counsel appearing on behalf of
Respondent No. 3/ Insurance Company, at the outset, very
fairly conceded that multiplier to be applied with reference to
the age of the deceased and accordingly multiplier of 17 should
be applied instead of 9. He also conceded for applying 40%
increase in the salary of the deceased instead of 30% as held by
the learned Tribunal for computation of compensation under
the head „Loss of future prospects‟ in view of the law laid down
by the Hon‟ble Supreme Court in the case of Pranay Sethi
(supra).
10. Learned counsel for Respondent No.3/ Insurance Company
further contended that as far as assessing the income of the
deceased as per his vocation is concerned, learned Tribunal has
correctly come to a conclusion for calculating the income of the
deceased to be Rs.8,000/- per month. He further contended that
no cogent evidence has been placed on record by the
Appellants herein to prove that the deceased who was final year
MBA student would have earned Rs. 30,000/- per month
and accordingly, no interference, under the head „Loss of
dependency‟ is called for by this Court.
11. Learned counsel placing reliance on the case of Pranay Sethi
(supra) contended that personal expenses/deduction in the
present case should be calculated @ 50% of the assessed
income of the deceased instead of 1/3 as computed by the
learned Tribunal. As far as non-pecuniary compensation is
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concerned, learned counsel contended that the legal heirs of the
deceased are entitled to an amount of Rs.55,000/- only.
12. In rebuttal, Mr. S. N. Parashar, learned counsel for the
Appellants fairly concedes that personal expenses/deduction of
the assessed income of the deceased in the present case should
be calculated @ 50% instead of 1/3 as computed by the learned
Tribunal.
LEGAL ANALYSIS
13. The arguments raised by the learned counsel for the parties
are purely legal and based on the law settled by the Hon‟ble
Apex Court. At the outset, we deem it appropriate to usher the
finding dwelling on the decision passed by the Hon‟ble Apex
Court in the case of Pranay Sethi (supra). Relevant portion of
the same is recapitulated as under: -
"54. As far as the conventional heads are concerned,
we find it difficult to agree with the view expressed in
Rajesh. It has granted Rs. 25,000/- towards funeral
expenses, Rs. 1,00,000/- loss of consortium and
Rs.1,00,000/- towards loss of care and guidance for
minor children. The head relating to loss of care and
minor children does not exist. Though Rajesh refers to
Santosh Devi, it does not seem to follow the same. The
conventional and traditional heads, needless to say,
cannot be determined on percentage basis because that
would not be an acceptable criterion. Unlike
determination of income, the said heads have to be
quantified. Any quantification must have a
reasonable foundation. There can be no dispute over
the fact that price index, fall in bank interest, escalation
of rates in many a field have to be noticed. The court
cannot remain oblivious to the same. There has been
a thumb Rule in this aspect. Otherwise, there will be
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extreme difficulty in determination of the same and
unless the thumb Rule is applied, there will be immense
variation lacking any kind of consistency as a
consequence of which, the orders passed by the
tribunals and courts are likely to be unguided.
Therefore, we think it seemly to fix reasonable sums. It
seems to us that reasonable figures on conventional
heads, namely, loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/-, Rs. 40,000/-
and Rs. 15,000/- respectively. The principle of
revisiting the said heads is an acceptable principle. But
the revisit should not be fact-centric or quantum-
centric. We think that it would be condign that the
amount that we have quantified should be enhanced
on percentage basis in every three years and the
enhancement should be at the rate of 10% in a span
of three years.
We are disposed to hold so because that will bring in
consistency in respect of those heads.
XXXX XXXX XXXX
59. Having bestowed our anxious consideration, we are
disposed to think when we accept the principle of
standardization, there is really no rationale not to
apply the said principle to the self-employed or a
person who is on a fixed salary. To follow the doctrine
of actual income at the time of death and not to add any
amount with regard to future prospects to the income
for the purpose of determination of multiplicand would
be unjust. The determination of income while
computing compensation has to include future
prospects so that the method will come within the ambit
and sweep of just compensation as postulated Under
Section 168 of the Act. In case of a deceased who had
held a permanent job with inbuilt grant of annual
increment, there is an acceptable certainty. But to state
that the legal representatives of a deceased who was on
a fixed salary would not be entitled to the benefit of
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future prospects for the purpose of computation of
compensation would be inapposite. It is because the
criterion of distinction between the two in that event
would be certainty on the one hand and staticness on
the other. One may perceive that the comparative
measure is certainty on the one hand and uncertainty
on the other but such a perception is fallacious. It is
because the price rise does affect a self-employed
person; and that apart there is always an incessant
effort to enhance one's income for sustenance. The
purchasing capacity of a salaried person on permanent
job when increases because of grant of increments and
pay revision or for some other change in service
conditions, there is always a competing attitude in the
private sector to enhance the salary to get better
efficiency from the employees. Similarly, a person who
is self-employed is bound to garner his resources and
raise his charges/fees so that he can live with same
facilities. To have the perception that he is likely to
remain static and his income to remain stagnant is
contrary to the fundamental concept of human attitude
which always intends to live with dynamism and move
and change with the time. Though it may seem
appropriate that there cannot be certainty in addition
of future prospects to the existing income unlike in the
case of a person having a permanent job, yet the said
perception does not really deserve acceptance. We are
inclined to think that there can be some degree of
difference as regards the percentage that is meant for
or applied to in respect of the legal representatives who
claim on behalf of the deceased who had a permanent
job than a person who is self-employed or on a fixed
salary. But not to apply the principle of standardization
on the foundation of perceived lack of certainty would
tantamount to remaining oblivious to the marrows of
ground reality. And, therefore, degree-test is
imperative. Unless the degree-test is applied and left to
the parties to adduce evidence to establish, it would be
unfair and inequitable. The degree-test has to have the
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inbuilt concept of percentage. Taking into
consideration the cumulative factors, namely, passage
of time, the changing society, escalation of price, the
change in price index, the human attitude to follow a
particular pattern of life, etc., an addition of 40% of
the established income of the deceased towards future
prospects and where the deceased was below 40 years
an addition of 25% where the deceased was between
the age of 40 to 50 years would be reasonable.
60. The controversy does not end here. The question
still remains whether there should be no addition where
the age of the deceased is more than 50 years. Sarla
Verma thinks it appropriate not to add any amount and
the same has been approved in Reshma Kumari.
Judicial notice can be taken of the fact that salary does
not remain the same. When a person is in a permanent
job, there is always an enhancement due to one reason
or the other. To lay down as a thumb Rule that there
will be no addition after 50 years will be an
unacceptable concept. We are disposed to think, there
should be an addition of 15% if the deceased is between
the age of 50 to 60 years and there should be no
addition thereafter. Similarly, in case of self-employed
or person on fixed salary, the addition should be 10%
between the age of 50 to 60 years. The aforesaid
yardstick has been fixed so that there can be
consistency in the approach by the tribunals and the
courts."
(emphasis supplied)
14. From the perusal of the aforesaid Judgment, it is emphatically
clear that for the conventional heads, namely, loss of estate,
loss of consortium and funeral expenses, the amount of
compensation is fixed at Rs. 15,000/-, Rs. 40,000/- and Rs.
15,000/- respectively with an increase of 10% after a period of
3 years. Further, since the deceased was of the age of 27 years
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at the time of alleged incident, an addition of 40% of the
established income should be granted under the head „future
prospects'. With regard to deduction to be made towards
personal and living expenses, the Hon‟ble Supreme Court in
Pranay Sethi (Supra) upholds the deduction ascertained in the
case of Sarla Verma & Ors. Vs DTC & Anr. reported as
(2009) 6 SCC 121. As far as multiplier is concerned, judgment
in Pranay Sethi (Supra) followed the multiplier as indicated in
column (4) of the Table in the case of Sarla Verma (Supra).
The Hon‟ble Supreme Court in the case of Sarla Varma
(Supra) while determining the multiplier in an accident case
has held that: -
"21. We therefore hold that the multiplier to be used
should be as mentioned in column (4) of the Table
above (prepared by applying Susamma Thomas, Trilok
Chandra and Charlie), which starts with an operative
multiplier of 18 (for the age groups of 15 to 20 and 21
to 25 years), reduced by one unit for every five years,
that is M-17 for 26 to 30 years, M-16 for 31 to 35
years, M-15 for 36 to 40 years, M-14 for 41 to 45
years, and M-13 for 46 to 50 years, then reduced by
two units for every five years, that is, M-11 for 51 to 55
years, M-9 for 56 to 60 years, M-7 for 61 to 65 years
and M-5 for 66 to 70 years."
(Emphasis supplied)
15. Multiplier to be used as per above dicta of in Sarla Verma
(Supra) is as under: -
Column Upt 15 21 26 31 36 41 46 51 56 61 Ab
o to to to to to to to to to to ov
15 20 25 30 35 40 45 50 55 60 65 e
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yrs yr yr yr yr yr yr yr yrs yrs yrs 65
s s s s s s s yrs
(4) 15 18 18 17 16 15 14 13 11 9 7 5
16. Regarding the contention of learned counsel for the
Appellants for enhancement of compensation on the head „Loss
of Dependency‟ on the basis of appointment letter issued in
favour of the deceased offering him a salary of Rs. 30,000/-
p.m. is concerned, this Court finds that the appointment letter
was produced by the mother of the deceased i.e., PW-1 and the
same was exhibited as Ex. PW-1/17. This Court has gone
through Ex. PW-1/17 which is issued by Trustee-cum-
Principal Secretary, NGO Helpline, India dated 14.12.2009.
Nothing has been brought on record by the Respondent
No.3/Insurance Company to disbelieve the appointment letter
as well the testimony of PW-1. Similarly, no efforts have been
made by the Appellants to substantiate the authenticity of the
Appointment Letter dated 14.12.2009 which is an exhibited
document. The onus lies on the Appellants to prove the validity
of Ex. PW-1/17 which they failed to prove. As such this Court
cannot take into account the amount of salary referred in the
said Appointment Letter for ascertaining the future income of
the deceased. However, there is no denial of the fact that the
deceased could have obtained higher salary after completing
his MBA degree. The documents attached with the case file
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shows that he has already appeared in the final year MBA
examination. The deceased was a Commerce Graduate and has
completed 'Office Assistant Course' from Bhartiya Vidya
Bhavan and has also done a six months‟ „Master Accountant‟
certificate course from the Institute of Computer Accounts. The
deceased has also done an 80 hours course in Finance and
Control. It is evident from the testimony of PW-2, Shelly
Arora proprietor of M/s. Rajiv Arora and Shelly Arora that the
deceased was working as an Accountant in their firm and was
earning Rs. 8,000/- per month. The record further shows that
the deceased was a striving individual and had desire to obtain
a better living. He had appeared in his Final Year MBA
examination and would have obtained a professional degree.
The appointment letter also shows that he was offered the post
of Assistant Manager Finance before completion of his MBA
degree course.
17. From the perusal of the above records, this Court has no
hesitation in enhancing the future income determined by the
learned Tribunal. This Court determines the future income of
the deceased at Rs. 15,000/- per month i.e., Rs. 15,000 X 12 =
1,80,000/- per annum.
18. In the case of in K. Suresh v. New India Assurance Co. Ltd.
reported in (2012) 12 SCC 274, the Hon‟ble Supreme Court of
India while observing that Tribunal and Courts have to be
broad based in computing compensation, has held as under: -
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"10. It is noteworthy to state that an adjudicating
authority, while determining the quantum of
compensation, has to keep in view the sufferings of the
injured person which would include his inability to lead
a full life, his incapacity to enjoy the normal amenities
which he would have enjoyed but for the injuries and
his ability to earn as much as he used to earn or could
have earned. Hence, while computing compensation
the approach of the Tribunal or a court has to be
broad-based. Needless to say, it would involve some
guesswork as there cannot be any mathematical
exactitude or a precise formula to determine the
quantum of compensation. In determination of
compensation the fundamental criterion of "just
compensation" should be inhered."
(Emphasis supplied)
19. Further in the case of Jagdish v. Mohan reported in AIR
2018 SC 1347, the Hon‟ble Apex Court observed that the
Courts must provide a realistic compensation for the pain of
loss and the trauma of suffering of the victim and has held
that:-
"14. In making the computation in the present case, the
court must be mindful of the fact that the Appellant has
suffered a serious disability in which he has suffered a
loss of the use of both his hands. For a person engaged
in manual activities, it requires no stretch of
imagination to understand that a loss of hands is a
complete deprivation of the ability to earn. Nothing at
least in the facts of this case can restore lost hands. But
the measure of compensation must reflect a genuine
attempt of the law to restore the dignity of the being.
Our yardsticks of compensation should not be so
abysmal as to lead one to question whether our law
values human life. If it does, as it must, it must
provide a realistic recompense for the pain of loss and
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the trauma of suffering. Awards of compensation are
not law's doles. In a discourse of rights, they constitute
entitlements under law. Our conversations about law
must shift from a paternalistic subordination of the
individual to an assertion of enforceable rights as
intrinsic to human dignity."
(Emphasis supplied)
20. In view of the above observations, the appellants shall be
entitled to enhanced/modified compensation as mentioned
below: -
S. Heads Awarded compensation
No.
1. Loss of dependency Rs. 15,000/- X 12 =
Rs.1,80,000/-
Adding future prospect
Rs. 1,80,000/-+ 72000/-
(40% of Rs. 1,80,000/-) =
Rs. 2,52,000/-
Deducting personal and
living expenses
Rs. 2,52,000/- X ½ =
Rs. 1,26,000/-
Rs. 1,26,000/- X 17=
Rs. 21,42,000/-
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2. Loss of consortium Rs. 44000/- X 2=
Rs. 88,000/-
3. Loss of Estate Rs. 16,500/-
4. Funeral Charges Rs. 16,500/-
Total compensation Rs. 22,63,000/-
21. Accordingly, the computation of compensation by the learned
Tribunal is enhanced/ modified as detailed in the table above.
The compensation of Rs. 22,63,000/- alongwith interest @ 9%
per annum from the date of institution of the claim petition is
awarded to the appellants.
22. Respondent No. 3/ Insurance Company is directed to deposit
the entire Awarded compensation i.e., Rs. 22,63,000/-
deducting the amount which has already been deposited or kept
in the form of FDR within a period of 4 weeks.
23. After deposit of the Awarded amount as mentioned in the
above paragraph, Registry is directed to release entire deposited
amount within two weeks to the Appellants. Appellants are also
entitled for the statutory deposit.
24. Appeal stands disposed of. No order as to costs.
GAURANG KANTH, J.
SEPTEMBER 09, 2022
Signature Not Verified
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DHIRANIA
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