Oriental Insurance Company Ltd Vs. Smt. Mithlesh and ors. - Court Judgment

Excerpt:
* in the high court of delhi at new delhi date of decision:21. t november, 2012 + mac.app. 380/2010 oriental insurance company ltd. ...... appellant through: mr. pradeep gaur, adv. with mr. amit gaur, adv. versus smt. mithlesh & ors. through: ..... respondents mr. anshuman bal, adv. for r-1 to r-7. coram: hon'ble mr. justice g.p.mittal judgment g. p. mittal, j.(oral) 1. the appeal is for reduction of compensation of `5,02,728/- awarded by the motor accident claims tribunal (the claims tribunal) in favour of respondents no.1 to 7 for the death of krishan avtar gupta, who died in a motor vehicle accident which occurred on 04.08.2007.2. the finding on negligence reached by the claims tribunal is not challenged by the appellant insurance company. thus, the same has attained finality.3. during inquiry before the claims tribunal it was claimed that the deceased was working as an accountant and was earning `12,000/- per month. in the absence of any cogent evidence with regard to the deceaseds qualification and employment, the claims tribunal took the deceaseds income to be `3516/- per month, i.e. of an unskilled worker as per the minimum wages act, added 50% towards inflation, deducted one-third towards personal and living expenses and applied the multiplier of 9 to compute the loss of dependency.4. the compensation awarded is tabulated hereunder:sl. compensation under various heads no. awarded by the claims tribunal 1. loss of dependency 2. loss of consortium ` 10,000/- 3. loss to estate ` 10,000/- 4. funeral expenses 5. loss of love & affection ` 70,000/- 6. medical treatment expenses on deceased before his death ` 28,000/- `3,79,728/- ` 5,000/- total 5. ` 5,02,728/- the following contentions are raised on behalf of the appellant insurance company:(i) since the deceased was aged 56 years on the date of the accident, an addition of 50% towards future prospects/inflation was not permissible. reliance is placed on sarla verma (smt.) & ors. v. delhi transport corporation & anr., (2009) 6 scc 121.and santosh devi v. national insurance company ltd. & ors., 2012 (4) scale 559 (ii) almost all the children of the deceased were settled in their lives. deceaseds widow was the only one dependent on him. the claims tribunal, therefore, ought to have made deduction of 50% in the deceaseds income towards his personal and living expenses instead of one-third made by the claims tribunal.6. on the other hand, learned counsel for the respondents (the claimants) states that since the deceased had four married daughters and one unmarried son, who was in the process of settling in life, the claims tribunal was justified in making deduction of one-third towards personal and living expenses.7. in order to prove the deceaseds income the claimants examined smt. mithlesh, the deceaseds widow as pw-1. she testified that her husband was working as an accountant in a private firm and was earning `12,000/- per month. pw-1 did not disclose the name of the employer nor any cogent evidence was produced with regard to the deceaseds employment and his earning. the claims tribunal, therefore, rightly assumed the deceaseds income to be `3516/- per month on the basis of minimum wages of an unskilled worker. addition of 50%, however, was not justified in view of the fact that the deceased was aged more than 50 years. the addition towards inflation could also be made only when the deceased was upto 50 years. (see: santosh devi v. national insurance company ltd. & ors., 2012 (4) scale 559 .8. the claims tribunal dealt with the question of deduction in para 33 of the impugned judgment which is extracted hereunder:33. amongst the petitioners the youngest daughter was of age 24 years viz., petitioner no.7 as on the date of accident. only petitioner no.6, the son of the deceased was unmarried. the other children of the deceased were married, major. all the four daughters of the deceased viz. petitioners no.2,3,4 & 7 were married and settled in their respective matrimonial home. only petitioner no.1, wife of the deceased was dependent on the earnings of the deceased. fact remains, since the deceased had four married daughters, it cannot be presumed that deceased would be spending more than 1/3rd on his own expenses, since he had to meet all kinds of expenses arising at various and numerous occasions on visits of the daughters. in view of aforesaid, the deduction towards personal and living expenses of the deceased, would be one-third (1/3rd), out of his monthly earning i.e., `1758/(`5274/- divided by 3). the loss of monthly dependency to the legal representatives of the deceased accordingly is `3516/-. (`5274/- minus `1758/-).9. considering that the deceased had four married daughters and one unmarried son. the claims tribunal was justified in making deduction of one-third from the deceaseds income towards his personal and living expenses.10. the loss of dependency thus comes to `2,53,152/- (3516/- x 2/3 x 12 x9) as against `3,79,728/- awarded by the claims tribunal.11. consequently, the compensation is required to be reduced by `1,26,576/-.12. by an order dated 28.09.2010 on deposit of the entire award amount along with interest, the execution of the impugned judgment was stayed. 75% of the award amount was ordered to be released in favour of the claimants. twenty five percent of the award amount comes to about `1,25,682/-. thus, the balance 25% of the awarded amount along with proportionate interest and the interest accrued, if any, during the pendency of the appeal shall be refunded to the appellant insurance company.13. in view of the above the compensation is reduced by ` 1,25,682/- instead of ` 1,26,576/- .14. seventy five percent of the awarded amount, if not already released shall be released in favour of the claimants in terms of the order passed by the claims tribunal.15. the appeal is allowed in above terms.16. the statutory deposit of `25,000/- be refunded to the appellant insurance company.17. pending applications also stand disposed of. (g.p. mittal) judge november 21 2012 vk

Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:

21. t November, 2012 + MAC.APP. 380/2010 ORIENTAL INSURANCE COMPANY LTD. ...... Appellant Through: Mr. Pradeep Gaur, Adv. with Mr. Amit Gaur, Adv. versus SMT. MITHLESH & ORS. Through: ..... Respondents Mr. Anshuman Bal, Adv. for R-1 to R-7. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT G. P. MITTAL, J.

(ORAL) 1. The Appeal is for reduction of compensation of `5,02,728/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of Respondents No.1 to 7 for the death of Krishan Avtar Gupta, who died in a motor vehicle accident which occurred on 04.08.2007.

2. The finding on negligence reached by the Claims Tribunal is not challenged by the Appellant Insurance Company. Thus, the same has attained finality.

3. During inquiry before the Claims Tribunal it was claimed that the deceased was working as an Accountant and was earning `12,000/- per month. In the absence of any cogent evidence with regard to the deceaseds qualification and employment, the Claims Tribunal took the deceaseds income to be `3516/- per month, i.e. of an unskilled worker as per the Minimum Wages Act, added 50% towards inflation, deducted one-third towards personal and living expenses and applied the multiplier of 9 to compute the loss of dependency.

4. The compensation awarded is tabulated hereunder:Sl. Compensation under various heads No. Awarded by the Claims Tribunal 1. Loss of Dependency 2. Loss of Consortium ` 10,000/- 3. Loss to Estate ` 10,000/- 4. Funeral Expenses 5. Loss of Love & Affection ` 70,000/- 6. Medical Treatment Expenses on deceased before his death ` 28,000/- `3,79,728/- ` 5,000/- Total 5. ` 5,02,728/- The following contentions are raised on behalf of the Appellant Insurance Company:(i) Since the deceased was aged 56 years on the date of the accident, an addition of 50% towards future prospects/inflation was not permissible. Reliance is placed on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121.and Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 (ii) Almost all the children of the deceased were settled in their lives. Deceaseds widow was the only one dependent on him. The Claims Tribunal, therefore, ought to have made deduction of 50% in the deceaseds income towards his personal and living expenses instead of one-third made by the Claims Tribunal.

6. On the other hand, learned counsel for the Respondents (the Claimants) states that since the deceased had four married daughters and one unmarried son, who was in the process of settling in life, the Claims Tribunal was justified in making deduction of one-third towards personal and living expenses.

7. In order to prove the deceaseds income the Claimants examined Smt. Mithlesh, the deceaseds widow as PW-1. She testified that her husband was working as an Accountant in a private firm and was earning `12,000/- per month. PW-1 did not disclose the name of the employer nor any cogent evidence was produced with regard to the deceaseds employment and his earning. The Claims Tribunal, therefore, rightly assumed the deceaseds income to be `3516/- per month on the basis of minimum wages of an unskilled worker. Addition of 50%, however, was not justified in view of the fact that the deceased was aged more than 50 years. The addition towards inflation could also be made only when the deceased was upto 50 years. (See: Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 .

8. The Claims Tribunal dealt with the question of deduction in Para 33 of the impugned judgment which is extracted hereunder:33. Amongst the petitioners the youngest daughter was of age 24 years viz., petitioner No.7 as on the date of accident. Only petitioner No.6, the son of the deceased was unmarried. The other children of the deceased were married, major. All the four daughters of the deceased viz. petitioners No.2,3,4 & 7 were married and settled in their respective matrimonial home. Only petitioner No.1, wife of the deceased was dependent on the earnings of the deceased. Fact remains, since the deceased had four married daughters, it cannot be presumed that deceased would be spending more than 1/3rd on his own expenses, since he had to meet all kinds of expenses arising at various and numerous occasions on visits of the daughters. In view of aforesaid, the deduction towards personal and living expenses of the deceased, would be one-third (1/3rd), out of his monthly earning i.e., `1758/(`5274/- divided by 3). The loss of monthly dependency to the legal representatives of the deceased accordingly is `3516/-. (`5274/- minus `1758/-).

9. Considering that the deceased had four married daughters and one unmarried son. The Claims Tribunal was justified in making deduction of one-third from the deceaseds income towards his personal and living expenses.

10. The loss of dependency thus comes to `2,53,152/- (3516/- x 2/3 x 12 x

9) as against `3,79,728/- awarded by the Claims Tribunal.

11. Consequently, the compensation is required to be reduced by `1,26,576/-.

12. By an order dated 28.09.2010 on deposit of the entire award amount along with interest, the execution of the impugned judgment was stayed. 75% of the award amount was ordered to be released in favour of the Claimants. Twenty five percent of the award amount comes to about `1,25,682/-. Thus, the balance 25% of the awarded amount along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

13. In view of the above the compensation is reduced by ` 1,25,682/- instead of ` 1,26,576/- .

14. Seventy five percent of the awarded amount, if not already released shall be released in favour of the Claimants in terms of the order passed by the Claims Tribunal.

15. The Appeal is allowed in above terms.

16. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.

17. Pending Applications also stand disposed of. (G.P. MITTAL) JUDGE NOVEMBER 21 2012 vk