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2009 DIGILAW 215 (DEL)

Chotti Devi v. National Insurance Co. Ltd.

2009-02-17

J.R.MIDHA

body2009
JUDGMENT : J.R. MIDHA, J. 1. The appellants have challenged the award dated 28th July, 2005 passed by the Learned Tribunal whereby the compensation of Rs. 5,04,480/- along with interest @ 9% per annum has been awarded to the appellants. The appellants seek enhancement of the award amount. 2. This case relates to the road accident dated 22nd July, 2002. The deceased, Mr. Jugal Kishore was standing in front of the Bhagel sweets shop, IGNOU road, Nem Sarai, New Delhi when offending vehicle bearing No. D1 1PB 3623 came from Saket side and hit the deceased, Mr. Jugal Kishore who died at the spot. 3. The deceased was aged 32 years at the time of his death and was survived by his wife, three sons and daughter who filed the claim petition before the Learned Tribunal. The deceased was working as 'Halwayee' with Aggarwal Sweets, Malviya Nagar and was drawing a salary of Rs. 3,500/- per month. 4. The Learned Tribunal took the income of the deceased at Rs. 3091.40 as per the Schedule of Minimum Wages for skilled worker. The future prospects were taken into consideration by assuming that the income of the deceased would have risen to Rs. 4,000/- per month and the average of Rs. 3,091.40 and Rs. 4,000/- was taken as Rs. 3,550/-. 1/3rd was deducted towards personal expenses of the deceased and the dependency of the legal representative was computed to be Rs. 2,370/- per month. The Learned Tribunal applied the multiplier of 17 as per the Second Schedule of Motor Vehicles Act and computed the loss of dependency to be Rs. 4,83,480/-. Rs. 15,000/- was awarded towards loss of estate and consortium and Rs. 6,000/- towards amount spent on transportation of the dead body to the village for cremation. The total compensation was computed at Rs. 5,04,480/-. 5. The Learned Counsel for the claimant has urged the following grounds for enhancement of the award: (i) The income of the deceased should be taken to be Rs. 3,500/- per month. (ii) Increase in minimum wages is to be considered in view the judgment in case of UPSRC v. Munni Devi 2008 VIII AD (Delhi) 9. (ii) The deceased was having free boarding and lodging and, therefore his personal expenses should have been deducted at the rate of Rs. 250/- per month instead of 1/3rd taken by the Learned Tribunal. (ii) Increase in minimum wages is to be considered in view the judgment in case of UPSRC v. Munni Devi 2008 VIII AD (Delhi) 9. (ii) The deceased was having free boarding and lodging and, therefore his personal expenses should have been deducted at the rate of Rs. 250/- per month instead of 1/3rd taken by the Learned Tribunal. (iii) The compensation for loss of consortium be enhanced from Rs. 15,000/- to Rs. 50,000/-. (iv) The compensation for loss of love and affection be enhanced to Rs. 50,000/-. 6. With respect to the income of the deceased, the appellant has examined one witness, namely, PW-2 - Omvir who was running the sweet shop in Nem Sarai. PW - 2 was earlier working with Aggarwal Sweets where the deceased was employed. PW-2 deposed that the deceased was earning Rs. 3,500/- per month from the sweet shop. However, no documentary proof was filed with respect to the income. The Learned Tribunal took the minimum wages payable to the skilled worker at Rs. 3,091.40. 7. There is no infirmity in the finding of the Learned Tribunal in as much as appellants have produced no documentary proof to prove the salary of the deceased. No reason has been given as to why the employer was not called in the witness box to prove the salary of the deceased. In the absence of the primary evidence, the finding of the Learned Tribunal with respect to the income of the deceased according to the minimum wages for skilled worker is correct. 8. In the cases of Kanwar Devi v. Bansal Roadways 2008 ACJ 2182, Lekh Raj and Another Vs. Suram Singh and Others, (2007) ACJ 2165 and National Insurance Company Ltd. Vs. Renu Devi and Others, (2009) ACJ 1921, it has been held that the Court should take judicial notice of increase in minimum wages to meet the price index and inflation rate. The Court has taken the view that the minimum wages get doubled over the period of 10 years and increase in minimum wages is not akin to future prospects. Following the aforesaid judgments, the income of the deceased is taken at Rs. 4,640/- per month [(Rs. 3,091.40 + Rs. 3,091.40 x 2)/2] 9. With respect to the personal expenses of the deceased, there is no evidence that the deceased had free boarding and lodging. Following the aforesaid judgments, the income of the deceased is taken at Rs. 4,640/- per month [(Rs. 3,091.40 + Rs. 3,091.40 x 2)/2] 9. With respect to the personal expenses of the deceased, there is no evidence that the deceased had free boarding and lodging. However, considering that the deceased left behind five legal representatives, namely, his wife and four minor children, following the ratio of Surinder Kaur and Others Vs. Inder Kapoor and Another, (2004) 2 ACC 866, the personal expenses of the deceased should be deducted to the extent of 1/4th instead of 1/3rd. 10. The Learned Tribunal has correctly applied the multiplier of 17. 11. The Learned Tribunal has awarded Rs. 15,000/- towards loss of estate and consortium. In the judgment of Mohinder Kaur v. Hira Nand Sindhi 2007 ACJ 2123 , the Apex Court upheld the interest @ 9% on the loss of consortium of Rs. 50,000/-. In the judgment of the Madras High Court in the case of United India Insurance Co. Ltd. v. Sulochana III (2007) ACC 50 (DB), the High Court has awarded Rs. 50,000/- towards loss of consortium and Rs. 50,000/- for loss of love and affection. This Court has also awarded Rs. 50,000/- for loss of consortium in the case of New India Assurance Co. Ltd. Vs. Amaresh Kumari and Others, (2005) ACJ 538. 12. The compensation for loss of consortium and loss of love and affection are the non-pecuniary damages and it is desirable to maintain uniformity in awarding the non-pecuniary damages. The compensation for loss of consortium is enhanced from Rs. 15,000/- to Rs. 50,000/- and Rs. 50,000/- is awarded for loss of love and affection. 13. The computation of compensation is as under: Income of the deceased Rs. 4,640/- (rounded of) (Rs. 3,091.40 + Rs. 3,091.40 x 2) divided by 2. Deduction towards personal expenses Rs. 1,160- (1/4th of Rs. 4,640/-) Loss of Dependency Rs. 7,09,920/- [(Rs. 4,640- Rs. 1,160) x 12 x 17]. Loss of Consortium Rs. 50,000/- Loss of love and affection Rs. 50,000/- Funeral expenses Rs. 6,000/- Total Compensation Rs. 8,15,920/- 14. The appeal is allowed by enhancing the award from Rs. 5,04,480/- to Rs. 8,15,920/-. The interest @ 9% per annum on Rs. 5,04,480/- from the date of filing of the petition, i.e., 20th August, 2002 till realization is not disturbed. 50,000/- Loss of love and affection Rs. 50,000/- Funeral expenses Rs. 6,000/- Total Compensation Rs. 8,15,920/- 14. The appeal is allowed by enhancing the award from Rs. 5,04,480/- to Rs. 8,15,920/-. The interest @ 9% per annum on Rs. 5,04,480/- from the date of filing of the petition, i.e., 20th August, 2002 till realization is not disturbed. However, the interest on the enhanced amount would be payable @ 7.5% from the date of filing of the petition till date of payment as per the recent judgment of the Apex Court in the case of Dharampal v. U.P. State Road Transport Corporation III 2008 ACC 1 SC. 15. Respondent No. 1 is directed to deposit the enhanced amount along with interest accrued thereon with the Learned Tribunal within 30 days. The enhanced amount along with interest be released to the appellants in the same proportion as in the award of the learned Tribunal. 50% of the amount payable to appellant No. 1 is directed to be kept in a FDR for a period of 5 years and the interest thereon be paid to the appellant No. 1. The share of appellants No. 2 to 5 be kept in fixed deposit for a period of five years or till they attain majority, whichever is later and the interest thereon be released to appellant No. 1.