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2013 DIGILAW 920 (DEL)

ICICI Lombard General Insurance Co. Ltd. v. Deepa Soni

2013-05-13

SURESH KAIT

body2013
JUDGMENT : Suresh Kait, J. 1. Instant appeal has been preferred against the impugned judgement dated 18.01.2012 passed by the ld. Tribunal whereby, ld. Tribunal has awarded the compensation as under:- “Loss of Dependency : Rs.44,79,936/- Funeral Expenses : Rs. 25,000/- Love and Affection : Rs. 75,000/- Loss of Consortium : Rs. 50,000/- TOTAL : Rs.46,29,936/-” 2. The above noted appeal has been filed mainly on the ground that ld. Tribunal has erred in calculating the compensation towards loss of dependency on the basis of salary certificate Ex.PW1/5. The said salary certificate has been treated as an authentic document as same was not proved. 3. Moreover, the author of the said salary certificate has not produced any authentic and reliable record pertaining to the employment of the deceased; and the deceased was a non-matriculate and not qualified for manufacturing of ornaments. 4. The second ground as argued by the ld. Counsel for the appellant is that ld. Tribunal has grossly erred in calculating the amount of dependency by adding 40% to the alleged salary of the deceased towards future prospects. The same is contrary to the principle of law laid down by the Apex Court in case of Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors. (2006) 3 SCC 242 . 5. Ld. Counsel submits that in view of the above arguments and legal submission, instant appeal is liable to be allowed and consequently the award granted by the ld. Tribunal may be reduced and modified. 6. On the other hand ld. Counsel appearing on behalf of the respondents / claimants has drawn the attention of this court to the salary certificate issued by Mr. Anil Soni of Soni Jewellers, wherein he stated that the deceased was working on contract basis at his shop mentioned above for the last 3 years. To prove the above fact, PW3, Sh. Anil Soni has been examined by the claimants, who stated that the said certificate was issued by him and deceased was working with him at the shop named above, i.e., Soni Jewellers at M-69, Sriniwas Puri, New Delhi for manufacturing the Gold ornaments and was earning Rs.20,000 to Rs.25,000/- per month. 7. In cross-examination, this witness stated that he used to pay the deceased as per the percentage of the Gold he transformed in ornaments. 7. In cross-examination, this witness stated that he used to pay the deceased as per the percentage of the Gold he transformed in ornaments. The deceased had not done any course for ornaments manufacturing and voluntarily stated that there is no such type of course for Karigars in this line and generally one learns by practice. He further submitted that he has other Karigars and he used to pay them on the same pattern. He also stated that he can show the record of the payment made to the deceased. 8. Ld. Counsel appearing on behalf of the respondent further submits that in view of the above, the salary certificate of the deceased has been proved by the claimants. PW3, employer of the deceased also stated that, if required, he can produce the original record pertaining to the payment made to the deceased. But the appellant neither asked for the record nor examined any witness contrary to the same. Therefore, ld. Tribunal has rightly relied upon the said salary certificate of the deceased for assessing the compensation. 9. So far as 40% compensation towards future prospects is concerned, ld. Counsel appearing on behalf of the respondents / claimants submits that at the time of accident, deceased was 32 years of age and keeping in view the dictum in , the ld. Tribunal has rightly awarded 40% compensation towards future prospects. 10. I heard ld. Counsels for the parties. 11. The deceased, aged 32, was working as goldsmith in a gold manufacturing shop, namely, Soni Jewellers, M-69, Sriniwas Puri, New Delhi. It is pertinent to note that the salary certificate of the deceased has been issued by PW3 and the same has been proved by the claimants. The witness, i.e., the employer of the deceased has been examined as PW3 who has specifically deposed with respect to the records related to the salary of the other employees including the deceased. Moreover, in the cross-examination, the witness stated that the payment made on account of salary to the employees has been recorded in the income tax returns. Significantly, the appellant / insurance company has not made any effort to bring in evidence to prove the contrary. Therefore, in my considered opinion, ld. Tribunal has rightly relied upon the salary certificate for assessing the income of the deceased. 12. Significantly, the appellant / insurance company has not made any effort to bring in evidence to prove the contrary. Therefore, in my considered opinion, ld. Tribunal has rightly relied upon the salary certificate for assessing the income of the deceased. 12. Secondly, the issue regarding the future prospects depends on the nature of the job or profession, as the case may be; and the age of the deceased. It is proved on record that the age of the deceased at the time of the accident was 32 years. The law is very clear regarding the future prospects for assessing the compensation as it is held in Rajesh and Ors. v. Rajbir Singh and Ors. 2013 (6) Scale 563. However, considering the nature of the job and age of the deceased the ld. Tribunal granted 40% increase on the income for assessing the future prospects of the deceased. I do not find any just and equitable reason for inference. 13. In view of the above discussion, instant appeal is dismissed with no order as to costs. 14. I note, pursuant to order dated 08.05.2012, the appellant / insurance company deposited 50% of the award amount along with proportionate interest with UCO Bank, Delhi High Court Branch. Thereafter, vide order dated 17.09.2012, sum of Rs. 2,00,000/- was directed to be released in favour of respondent no. 1 and sum of Rs.50,000/- each in favour of respondent nos. 3 & 4 respectively. 15. Thus, the appellant / insurance company is directed to deposit the balance award amount along with proportionate interest accrued thereon with UCO Bank, Delhi High Court Branch, New Delhi, within four weeks from the date of receipt of this order. 16. Thereafter, the Branch Manager, UCO Bank, Delhi High Court Branch is directed to release the balance compensation amount in favour of the respondents / claimants in terms of the order dated 18.01.2012 passed by the ld. Tribunal. 17. On depositing the balance compensation amount by the appellant / insurance company, Registry of this court is directed to release statutory amount of Rs.25,000/- in favour of the appellant. CM. NO. 8393/2012 In view of the above, instant application has become infructuous and disposed of as such.