Smt.Kaushalya Devi and Others Vs. Vikrarn Setia and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1132845
CourtPunjab and Haryana High Court
Decided OnMar-07-2014
AppellantSmt.Kaushalya Devi and Others
RespondentVikrarn Setia and Another
Excerpt:
fao-6775-2010 (o&m) 1 in the high court of punjab and haryana at chandigarh fao-6775-2010 (o&m) date of decision:7. 3.2014 smt.kaushalya devi and others ...appellants versus vikrarn setia and another ...respondents coram: hon'ble mr.justice jitendra chauhan present: mr.munish mittal, advocate for the appellant mr.mb jain, advocate for respondent no.2- insurance co. **** jitendra chauhan, j.application for condonation of delay learned counsel for the appellants contends that the claimants are widow and minor children. earlier they engaged a counsel namely mr.amit gupta, advocate and remained in a bona fide belief that the appeal on their behalf has been filed in this court. when the appellants came to know about not filing the appeal in this court, they immediately took the steps and ultimately the present appeal was filed on 28.5.2013. thus, the delay was beyond the control of the appellants. on the other hand, learned counsel appearing for the insurance company cites cicly kallarackla vs. vehicle factory shanker gauri 2014.03.12 17:32 i attest to the accuracy and integrity of this document high court chandigarh fao-6775-2010 (o&m) 2 (2012) 8 scc524and submits that when the legislation has provided statutory appeal, high court cannot bypass statutory appeal and thus, he prays for the dismissal of the application. heard. the claimants are widow and minor children in the instant case. the widow is an illiterate lady, who had immediately taken steps when she came to know about not filing the appeal by the earlier counsel. she remained under bona fide belief that the counsel had filed the appeal. the delay appears to be beyond her control. therefore, in the interest of justice, the delay of 1786 days in filing the appeal is hereby condoned. application is allowed accordingly. main appeal the present appeal has been filed by the claimant- appellants, seeking enhancement of the compensation awarded by the learned motor accident claims tribunal (ftc), karnal (for short 'the tribunal'), vide award dated 19.4.2005, on account of death of chandeshwar thakur, in a motor vehicular accident.2. learned counsel for the appellants submits that the learned tribunal erred in making the deduction to the extent of 1/3rd instead of 1/5th in view of the fact that the claimants are seven in number. he further submits that no amount has been awarded towards future prospects. he further submits that the amount shanker gauri 2014.03.12 17:32 i attest to the accuracy and integrity of this document high court chandigarh fao-6775-2010 (o&m) 3 awarded towards loss of consortium is also inadequate. no amount has been awarded towards loss of love, care and guidance to the children.3. on the other hand, the learned counsel for the respondent-insurance company has contended that just and appropriate compensation has been awarded by the learned tribunal. therefore, the present appeal may be dismissed.4. i have heard the learned counsel for the parties and perused the record carefully.5. it is not disputed that the death of chandeshwar thakur singh occurred due to the injuries suffered by him in a road accident. he was 35 years of age and left behind seven dependents i.e. widow and six minor children. in smt. sarla verma and others vs. delhi transport corporation and another, 2009(3) rcr (civil) 77, the hon'ble supreme court has observed as under:- 14. though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in trilok chandra, the general practice is to apply standardized deductions. having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number shanker gauri 2014.03.12 17:32 i attest to the accuracy and integrity of this document high court chandigarh fao-6775-2010 (o&m) 4 of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.6. in view of the same, in the present case, the deduction of 1/5th should be applied. ordered accordingly. from the perusal of the award, no amount has been awarded towards future prospects to the claimants. in rajesh and others vs. rajbir singh and others 2013 (9) scc54 the claimants are entitled to get 50% increase towards future prospects. no amount has been awarded towards loss of love, care and guidance to the minor children. this court feels that the amount awarded towards loss of consortium is also inadequate. keeping in view the judgment rendered by the hon'ble supreme court in vimal kanwar and others vs. kishore dan and others (2013-3) plr776 the compensation under the following heads is enhanced/ allowed, which would meet the ends of justice:- s.no.heads from to 1. loss of consortium payable to rs.5,000/- rs.1,00,000/- the widow 2. loss of love, care and rs.1,00,000/- guidance to the minor children 7. accordingly, the total compensation comes to rs.7,57,960/-( 2400(monthly income) +50% (future prospects) (– 1/5th (deduction towards personal expenses of the deceased) x 12 x shanker gauri 2014.03.12 17:32 i attest to the accuracy and integrity of this document high court chandigarh fao-6775-2010 (o&m) 5 16 (multiplier)+ 1,00,000 (loss of consortium including already granted) + 1,00,000 (loss of love, care and guidance to the children) +5000 (funeral and last rites expenses already awarded). the balance enhanced amount i.e.rs.4,40,760/-(7,57,960 -3,17,200/- already awarded by the tribunal) shall be paid to the claimant- appellants, in the manner indicated above as well as in the impugned award, within a period of 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellants shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation.8. in view of the above, the present appeal is partly allowed and the impugned award is modified to the above extent. 7.3.2014 (jitendra chauhan) gsv judge shanker gauri 2014.03.12 17:32 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

FAO-6775-2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-6775-2010 (O&M) Date of decision:

7. 3.2014 Smt.Kaushalya Devi and others ...Appellants Versus Vikrarn Setia and another ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Munish Mittal, Advocate for the appellant Mr.MB Jain, Advocate for respondent No.2- Insurance Co. **** Jitendra Chauhan, J.

Application for condonation of delay Learned counsel for the appellants contends that the claimants are widow and minor children. Earlier they engaged a counsel namely Mr.Amit Gupta, Advocate and remained in a bona fide belief that the appeal on their behalf has been filed in this Court. When the appellants came to know about not filing the appeal in this Court, they immediately took the steps and ultimately the present appeal was filed on 28.5.2013. Thus, the delay was beyond the control of the appellants. On the other hand, learned counsel appearing for the Insurance Company cites Cicly Kallarackla vs. Vehicle Factory Shanker Gauri 2014.03.12 17:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-6775-2010 (O&M) 2 (2012) 8 SCC524and submits that when the legislation has provided statutory appeal, High Court cannot bypass statutory appeal and thus, he prays for the dismissal of the application. Heard. The claimants are widow and minor children in the instant case. The widow is an illiterate lady, who had immediately taken steps when she came to know about not filing the appeal by the earlier counsel. She remained under bona fide belief that the counsel had filed the appeal. The delay appears to be beyond her control. Therefore, in the interest of justice, the delay of 1786 days in filing the appeal is hereby condoned. Application is allowed accordingly. Main appeal The present appeal has been filed by the claimant- appellants, seeking enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal (FTC), Karnal (for short 'the Tribunal'), vide award dated 19.4.2005, on account of death of Chandeshwar Thakur, in a motor vehicular accident.

2. Learned counsel for the appellants submits that the learned Tribunal erred in making the deduction to the extent of 1/3rd instead of 1/5th in view of the fact that the claimants are seven in number. He further submits that no amount has been awarded towards future prospects. He further submits that the amount Shanker Gauri 2014.03.12 17:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-6775-2010 (O&M) 3 awarded towards loss of consortium is also inadequate. No amount has been awarded towards loss of love, care and guidance to the children.

3. On the other hand, the learned counsel for the respondent-Insurance Company has contended that just and appropriate compensation has been awarded by the learned Tribunal. Therefore, the present appeal may be dismissed.

4. I have heard the learned counsel for the parties and perused the record carefully.

5. It is not disputed that the death of Chandeshwar Thakur Singh occurred due to the injuries suffered by him in a road accident. He was 35 years of age and left behind seven dependents i.e. widow and six minor children. In Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77, the Hon'ble Supreme Court has observed as under:- 14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number Shanker Gauri 2014.03.12 17:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-6775-2010 (O&M) 4 of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.

6. In view of the same, in the present case, the deduction of 1/5th should be applied. Ordered accordingly. From the perusal of the award, no amount has been awarded towards future prospects to the claimants. In Rajesh and others vs. Rajbir Singh and others 2013 (9) SCC54 the claimants are entitled to get 50% increase towards future prospects. No amount has been awarded towards loss of love, care and guidance to the minor children. This Court feels that the amount awarded towards loss of consortium is also inadequate. Keeping in view the judgment rendered by the Hon'ble Supreme Court in Vimal Kanwar and others vs. Kishore Dan and others (2013-3) PLR776 the compensation under the following heads is enhanced/ allowed, which would meet the ends of justice:- S.No.Heads From To 1. Loss of consortium payable to Rs.5,000/- Rs.1,00,000/- the widow 2. Loss of love, care and Rs.1,00,000/- guidance to the minor children 7. Accordingly, the total compensation comes to Rs.7,57,960/-( 2400(monthly income) +50% (future prospects) (– 1/5th (deduction towards personal expenses of the deceased) x 12 x Shanker Gauri 2014.03.12 17:32 I attest to the accuracy and integrity of this document High Court Chandigarh FAO-6775-2010 (O&M) 5 16 (multiplier)+ 1,00,000 (loss of consortium including already granted) + 1,00,000 (Loss of love, care and guidance to the children) +5000 (funeral and last rites expenses already awarded). The balance enhanced amount i.e.Rs.4,40,760/-(7,57,960 -3,17,200/- already awarded by the Tribunal) shall be paid to the claimant- appellants, in the manner indicated above as well as in the impugned Award, within a period of 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellants shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation.

8. In view of the above, the present appeal is partly allowed and the impugned Award is modified to the above extent. 7.3.2014 (JITENDRA CHAUHAN) gsv JUDGE Shanker Gauri 2014.03.12 17:32 I attest to the accuracy and integrity of this document High Court Chandigarh