Kiran Bhardwaj & Anr. v. Reliance Gen. Insurance Co. Ltd. & Ors

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgmentshould be reported inDigest? JUDGMENT: REVA KHETRAPAL, J.

1. By way of this appeal, the appellants seek to assail the judgment and award dated 04.12.2009 passed by the learned Motor Accident Claims Tribunal on the ground that the Claims Tribunal has notawarded compensation to them in consonance withlaw. MAC. APP. 82/2010 Pase l of12 2011:DHC:15325

2. The facts relevant for deciding the present appeal are that on 16.12.2007, one Shri Vikas Bhardwaj (hereinafter referred to as "the deceased") was going from Clock Tower to Shakti Nagar on G.T.Road, on his two wheeler scooter bearing No. DL-6SJ-1265, when suddenly atempo bearing No. UP-14U-9107, while over-taking the deceased, hit his two wheeler scooter. Due to forceftil impact, the deceased sustained grievous injuries. He was removed to Hindu Rao Hospital and thereafter to Sir Ganga Ram Hospital, where he was declared brought dead. A case bearing FIR No.387/2007 (wrongly noted as 397/2007 in the award of the Tribunal) was registered under Sections 279/338/304A IPG at Police Station Roop Nagar against the respondent No.2, the driver ofthe alleged offending tempo.

3. On a claim petition filed under Section 166 read with Section 140of the Motor Vehicles Act, 1988 for grant of compensation by the appellants, who are the parents ofthe deceased, the Glaims Tribunal on the evidence on record held the appellants entitled to receive compensation in the sum of? 5,20,000/- with interest at the rate of 7.5% per annum from the date of the filing of the petition i.e. MAC. APP. 82/2010 Pase 2 of12 // 07.02.2008 till its realization, inclusive of the interim award received by the appellants.

4. Aggrieved by the aforesaid award of compensation, the present appeal has been filed by the appellants on the ground that a very meager amount of compensation has been awarded by the learned Tribunal, keeping in view the fact that the deceased had a stable job and in due course of time, he would most certainly have made advancement in his career. According to the appellants, the Claims Tribunal while computing the loss of dependency of the appellants ought to have taken into consideration the future prospects of the deceased and the fact that in due course of time the income of the deceased would have increased considerably. Another contention of the appellants is thatthe Tribunal erred in taking into account the age of the father of the deceased, whereas the age of the mother of the deceased ought to have been the governing factor for the choice of multiplier by the Tribunal.

5. After hearing Mr. V.K.Kalra, the learned counsel for the appellants and Mr. Sameer Nandwani, the learned counsel for the MAC. APP. 82/2010 Pase 3 of12 )2respondent No.l, I am inclined to agree with the submission of Mr. Kalra that keeping in view the evidence on record, the Claims Tribunal ought to have taken into consideration the future prospects of the deceased. I say so for the reason that the deceased was indisputably 23 years of age at the time ofhis accidental death and was earning ? 7,500/- per month as per the salary certificate issued by his employer and proved on record by PWl-Smt. Kiran Bhardwaj as Ex. PWl/1 and PW4-Shri Vinit Bhatia, Accounts Manager, M/s. Golden Highway Goods Carrier, who produced the wages/salary record of the deceased. PW4-Shri Vinit Bhatia categorically stated that the salary certificate Ex. PWl/1 hadbeen issued from theiroffice and was signed by Shri Gagandeep Singh Kalra, partner of M/s. Golden Highway Goods Carrier (Regd.). He further proved on record that the salary of the deceased was shown at Point-A to be ?7,500/- per month in the four documents, Ex. PW4/1 to Ex. PW4/4, which were letters addressed by the firm to the Bank for transfer of amounts mentioned in the letters in the accounts ofvarious employees mentioned therein. The said letters were accompanied by cheques of MAC. APP. 82/2010 \ Pase 4 of12 1} the amounts for which transfers were to be made and the said cheques were dated 04.09.2007, 28.09.2007, 01.11.2007 and 04.12.2007 and reflected the salary of the deceased for the months of August, September, October and November,: 2007 respectively. He also proved on record the copy ofthe bank statement for the months of September, November and December, 2007 as Ex. PW4/5 to Ex. PW4/7. 6, In his cross-examination, the testimony of PW4-Shri Vinit Bhatia could not be shaken. He furnished on record the authority letter issued by the Company in his favour as Ex. PW4/R-1 and stated that apart from the record brought by him, his office was also having the ESI record and the bankrecordpertaining to the deceased andthat when a person was employed intheir Company, an appointment letter was issued. He stated that at the time ofjoining of service, the salary of the deceased was ^ 6,500/- per month and as in the case of every other employee, the salary ofthe deceased was transferred to his bank account. He further stated that ^ 7,500/- was the net salary of deceased at the time of his death and that he was working in their MAC. APP. 82/2010 Pase 5 of12 Company as booking/billing clerk. He categorically denied the suggestion that the documents Ex. PW4/1 to Ex. PW4/7 were fabricated documents.

7. From the aforesaid evidence on record, it clearly emerges that the deceased had a stable and permanent job and that at the time of joining, his salary was ^6,500/- per month, which had been increased to ? 7,500/- per month. PW2-Shri Chunni Lai, Assistant in ESI Subzi Mandi Branch produced the summoned lazer sheet ofthe deceased as Ex. PW2/1 and Ex. PW2/2 and testified that as per the record the deceased was a member of ESI from 31.05.2005. This clearly shows that from 31.05.2005, when the deceased had joined service with M/s. Golden Highway Goods Carrier (Regd.), he had made considerable progress till 16.12.2007, that is, the date ofthe accident. In a short span of about 2V[2] years his salary had increased by ? 1,000/- per month. He was only 23 years of age at the time ofhis unfortunate demise and with the passage of time, he would have most certainly made rapid strides in his job. I am, therefore, inclined to accept the contention ofthe learned counsel for the appellant that the MAC. APP. 82/2010 Pase 6 of12 /r Claims Tribunal while assessing the income of the deceased for the purpose of computing the loss of dependency ofthe appellants ought to have taken into account the future increase in the income of the deceased.

8. In this context, reference may be made to paragraphs 10 and 11 of the decision of the Supreme Court in Smt. Sarla Verma and Others versus Delhi Transport Corporation and Others, (2009) 6 see 121, which are as under:

MAC. APP. 82/2010 1 Pase7ofl[2] higher estimate ofmonthly income could be made at Rs. 2000/- as gross income before deducting the personal living expenses], The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav, where the deceased was getting a gross salary ofRs. 1543/- per month. Having regard to thefuture prospects ofpromotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs. 3000/-. This Court took the average ofthe actual income at the time of death and the projected income ifhe had lived a normal life period, and determined the monthly income as Rs. 2200/- per month. In Abati Bezbaruah v. Efy. Directgor General, Geological Survey of India, as against the actual salary income ofRs. 42,000/- per annum, (Rs. 3500/- per month) at the time ofaccident, this Courtassumed the income as Rs. 45,000/- per annum, having regard to the future prospects and career advancement ofthe deceased who was 40years of age.

11. In Susamma Thomas, this Court increased the income bynearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%). In view of imponderables and uncertainties, we are infavour ofadopting as a rule ofthumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words ^actual salary' should be read as ^actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no MAC. APP. 82/2010 Pflgg 8 of12 addition, where the age ofdeceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provisionfor annual increments etc.), the courts will usually take only the actual income at the time ofdeath. Adeparture therefrom should be made only in rare and exceptional cases involving special circumstances."

9. As regards the second contention raised on behalf of the appellants that the age of the mother of the deceased should have formed the basis for the choice of multiplier to be applied to the multiplicand constituting the income of the deceased, I aminclined to agree with this contention aswell. Themother of the deceased, who is in actual factthe legal representative of the deceased, must be presumed to be younger to his father and therefore it stands to reason that the loss of dependency of the parents must be determined with reference to the age of the mother of the deceased, who, in the normal course, was likely to outlive her husband. MAC. AFP. 82/2010 Pase 9 of12

10. Applying the aforesaid criteria and taking the annual income of the deceased to be ^ 90,000/- (T 7,500/- X 12) and adding 50% thereto towards the future prospects of the deceased, the income of the deceased for the purpose of computation of compensation works out to ^ 90,000/- + ^45,000/- (50% of the annual income) which equals to ^1,35,000/-. Deducting one-half from the aforesaid income towards the personal expenses of the deceased in accordance with the law, the annual loss of dependency of the parents of the deceased comes to ? 67,500/- per annum. The mother of the deceased according to her Election Card Ex. PWl/2 was 45 years of age on the date of the accident and thus, the proper multiplier in accordance with the age of the mother of the deceased would be the multiplier of'14' in consonance with the judgment of the Supreme Court in Sarla Verma's case (supra). Thus calculated, the compensation awardable to the appellants on account of loss of dependency works out to ^ 9,45,000/- (?67,500 X 14). Adding to the aforesaid amount ?5,000/- MAC. APP. 82/2010 Pase 10 of12 I? towards the loss of the estate of the deceased and ^10,000/- to each of the appellants towards the loss of love and affection of the deceased as awarded by the Claims Tribunal, the total compensation payable to the deceased comes to ? 9,70,000/-. It may be mentioned that ? 3,000/- had already been paid byESI to the appellants towards the funeral expenses of the deceased and, therefore, the Tribunal rightly did not award compensationunder this head.