Full Text
HIGH COURT OF DELHI
PRABHAWATI DEVI AND ORS ..... Petitioner
Through: Mr. S.N. Parashar, Advocate.
Through: Mr. J.P.N. Shahi, Advocate for respondent No. 3/ IFFCO-
Tokio General Insurance.
J U D G E M E N T
GAURANG KANTH, J.
JUDGMENT
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: - 2022:DHC:3598
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”
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 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’. 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 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: -
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 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: -
15. Multiplier to be used as per above dicta of in Sarla Verma (Supra) is as under: - Column Upt o to to to to to to to to to to Ab ov e yrs yr s yr s yr s yr s yr s yr s yr s yrs yrs yrs 65 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 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: - “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.”
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:-
20. In view of the above observations, the appellants shall be entitled to enhanced/modified compensation as mentioned below: -
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/-
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