Delhi District Court
Smt.Kusum Hooda W/O Late Major Virender ... vs National Insurance Company Ltd on 3 August, 2007
1
IN THE COURT OF SHRI DINESH KUMAR SHARMA,
JUDGE MACT, NEW DELHI
Suit No.478/06
1. Smt.Kusum Hooda w/o Late Major Virender Hooda, r/o
H.No. P-59-B, Shanker Vihar, Delhi Cantt.,
New Delhi
2. Master Aditya Singh s/o Late Major Virender Hooda, r/o
H.No. P-59-B, Shanker Vihar, Delhi Cantt.,
New Delhi
3. Miss Muskan @ Bulbul D/o Late Major Virender Hooda,
r/o H.No. P-59-B, Shanker Vihar, Delhi Cantt.,
New Delhi ... Petitioners.
VERSUS
1. National Insurance Company Ltd.,
Having its Registered Office at 3, Middleton Street,
Calcutta
2. Shri Satvir Singh s/o Sh.Kartar Singh,
r/o Village Mohri, PO Dadri,
Distt.Bhiwani, Haryana
3. Shri J.K.Sharma (owner),
M/s Chetak International Cargo Ltd.,
5, Transport Centre, PunjabiBagh,
New Delhi. (also at A-13, Sector 11, DLF,
Faridabad, Haryana)
4. Smt.Chander Devi w/o Dr.Ishwar Singh Hooda
r/o 278,Subash Nagar, Rohtak, Haryana
5. Dr.Ishwar Singh Hooda s/o Sh.Bharat Singh,
r/o 278 Subash Nagar, Rohtak, Haryana.
2
.... RESPONDENTS
Date of filing of petition: 10.5.2001 Date of assignment to this court: 29.11.2006 Judgment reserved for : 26.7.2007 Date of award :03.8.2007 AWARD On 9.3.2001 Major Virender Hooda along with his wife and two minor children met with a serious road accident at Najafgarh Bahadurgarh Road while he was going to Hissar on official duty. In the said accident Major Virender Hooda, serving Indian Army official, received fatal injuries while Smt.Kusum Hooda and her two minor children suffered serious injuries. The accident was allegedly caused by Shri Satvir Singh (R-2) while driving vehicle No. HR-38E-8129 at a high speed in a rash or negligent manner. The alleged offending vehicle hit against Maruti Zen car bearing No.UP 07H 0025, which was being driven by the deceased. The offending vehicle was owned by Shri J.K.Sharma (R-3) and it was insured with National Insurance Company Ltd. (R-1). Petitioners are the legal representatives of the deceased and they have filed the present petition u/s 166 Motor Vehicle Act 3 claiming compensation of Rs.1,14,45,000.00 as compensation. Three separate petitions have also been filed by Smt.Kusum Hooda, Master Aditya Singh and Ms.Muskan @ Bulbul who suffered injuries in the accident. R-1 in its written statement admitted that offending vehicle was duly insured with them vide policy No.360804/6319676 valid from 11.8.2000 to 10.8.2001. R-2 and R-3 in their written statement did not dispute the involvement of vehicle and factum of accident. It was pleaded that accident took place on account of negligence of the deceased himself. Vide order dated 1.5.2002 an interim award u/s 140 Motor Vehicle Act was passed and the following issues were framed on the pleadings of the parties:-
1) Whether the deceased Major Virender Hooda sustained fatal injuries in road accident dated 9.3.2001 because of rash and negligent driving of truck trailer no.HR-38 E 8129 by respondent No.2? OPP
1) If issue No.1 is proved in the affirmative, to what amount of compensation petitioners are entitled to 4 and from whom ? OPP
2) Relief.
3. Petitioner examined herself as PW 1. Col.G.S.Katoch has been examined by the petitioner as PW 2. Dr. S.R.Singh Chief Medical Officer Rao Tula Ram Memorial Hospital, Jafarpur has been examined as PW 3. He proved the MLR of deceased Major Virender Singh as Ex.PW1/1 and death certificate/death report as Ex.PW3/1 and Ex.PW3/2. Dr.Lalit Kumar CMO DDU hospital (PW4) stated that he had conducted autopsy on the body of Major Virender Hooda. The Insurance company examined Shri Satya Narain Sharma LDC RTO Alwar as RW1 and Shri Mahender Kumar License clerk, Licensing authority Loharu, Haryana as RW-2. The owner/insured of the offending vehicle has also filed is affidavit, however it seems that the affidavit has not been tendered by the owner/insured.
4. I have heard Learned counsel for parties and perused the record carefully. I propose to give my findings on the issues as follows:-
ISSUE NO. 1 5
5. Smt.Kusum Hooda in her testimony deposed on oath that on the day of accident she along with her husband and children were going in a Maruti Zen No.UP 07 H 0025 from Delhi Cantt. to Hissar. She stated that her husband i.e the deceased was driving the said car and she was sitting on the front seat and their both children were also travelling with them in the same car. PW 1 stated that her husband was driving the car with care and caution on the left side of the road. She further stated that at about 8.30 p.m when they reached Jharoda Kalan border near police picket, her husband stopped the vehicle as a trailer truck NolHR E 8129 was coming from front side at a high speed in a rash and negligent manner. She further stated that the policeman on duty at the picket tried to stop the truck but the driver of the truck continued to drive the truck at a high speed and hit their car. PW 1 further stated that the driver of the said car was crushed under the offending vehicle and the offending vehicle dragged the maruti zen upto the wall of police picket situated at a distance of about 15 to 20 yards from the place of accident. Major Hooda was taken to Rao Tulla Ram Memorial 6 Hospital, Zafarpur where he was declared dead. The copy of MLR and post mortem report has been proved as Ex.PW1/1 and Ex.PW1/B. The FIR Ex.PW1/C has been recorded on the statement of PW 1. The petitioner stated that she herself and both the children also suffered injuries in the accident.
6. In the cross examination by R-1 and R-2, PW 1 admitted that there was police picket and speed barriers at the place of accident and only one way traffic was flowing near the check post. Petitioner denied the suggestion that after the offending vehicle crossed the police picket, her husband hit against the truck while driving the car in a rash and negligent manner. Petitioner denied the suggestion that the accident took place on account of the fault of the deceased.
7. R-2 i.e. driver of the offending vehicle did not come in the witness box so as to prove the averments made in the written statement that accident took place on account of the negligence of the deceased himself. In the cross examination of PW 1 also nothing material came out which could indicate that the accident took place on account of the negligence of the deceased himself. The perusal of the 7 record indicates that offending vehicle was seized from the spot and it was duly got mechanically inspected. Even otherwise the involvement of the vehicle and factum of accident has not been disputed by the respondents. They have only pleaded that accident took place on account of negligence of the deceased himself but no evidence was led in order to prove this contention. The testimony of PW 1 has inspired the confidence of the Tribunal. There is no reason to disbelieve the testimony of PW 1. Hence I hold that the petitioners have successfully proved that Major Virender Hooda died in a road accident caused by R 2 while driving the offending vehicle No.HR-38 E 8129 in a rash and negligent manner.
ISSUE NO. 2
8. Col.G.S.Katoch (PW2) brought the personal file of deceased Major Virrender Hooda. Major Virender Hooda was commissioned in Army on 17.12.1988 and he was promoted as Major w.e.f.17.12.99. At the time of accident Major Virender Hooda was in the pay scale of Rs.12,250/- and he was getting gross salary of Rs.19,806/- p.m (which included 8 DA of Rs.5,381/- rank pay Rs.1200/- transport allowance Rs.800/- Kit maintenance allowance Rs.200/- CCA Rs.300/- ). PW 2 stated that deceased was also entitled for increment w.e.f. 1.2.2001 and gross salary would have become around Rs.20,000/- p.m. The pay slip of the deceased has been proved as Ex.PW2/1 and the order for giving increment as Ex.PW2/2. PW 2 further stated that deceased was going to Hissar on Government duty to deliver a lecture at Unit No.33 Armour Division. The witness stated that the deceased was having an excellent performance throughout his career and he had a very high career profile. Ex.PW2/3 is the career profile of deceased Major Virender Hooda which is stated to have been prepared on the basis of records. The witness stated that in December 2002 the deceased was due for promotion for the post of Lt. Col. and in March 2006, he would have become Colonel. Ex.PW2/4 is the calculation of the pay which the deceased would have got from time to time consequent upon his promotion to the higher ranks. The deceased was a para commando and was also getting special pay on that account. PW 2 also stated that deceased 9 had gone to Sri Lanka in the year 1989 and the deceased was also awarded various medals for his performance in Sri Lanka and J & K. PW 2 further stated that deceased had also worked as Instructor in ASC School Bareilly. It was stated that only officers of high profile are deputed as instructors. The witness stated that in view of the record of the deceased, he would have become Colonel definitely in 2006 and had good chances of promotion as Brigadier, Major General and Lt. General.
9. In cross examination PW 2 admitted that petitioner No.1 is given pension at the rate of 2/3rd of the last paid salary instead of 1/3rd on account of the fact that deceased met with fatal accident, while he was on duty. The witness stated that Army has not paid any compensation to the petitioner on account of death of Major Virender Hooda. It also came in the cross examination that no job has been offered to the petitioner on compassionate ground. The witness admitted in the cross examination that the promotion only till the post of Major is time bound and thereafter the promotion depends upon the existence of vacancies and 10 performance of officer.
10. Learned counsel for petitioner has argued at length that deceased was having a very high career profile and he would have risen to the top position of the Army, had he not met with the unfortunate accident. Learned counsel for petitioner has stated that exemplary compensation should be granted in this case taking into account the calculation of salary, as indicated in the document Ex.PW2/4, which the deceased would have earned had he not met this fatal accident. Learned counsel for petitioner has also attracted the attention of the Tribunal towards a letter/circular issued by the Joint Secretary to the Government of India regarding Restructuring of the Officers' Cadre of the Army. The perusal of this indicates that certain promotions in the army have been made time bound.
11. Undoubtedly, the deceased was having a good service record. He had all through been performing excellent and he would have definitely risen to a very high position had he not met with this accident. It is really unfortunate that a young 11 army officer lost his life in the unfortunate road accident. It is not loss of the family, I would say that it is loss of entire country. Such an officer is really an asset and his contribution to the country cannot be defined in the words. The purpose of granting compensation in the Motor Vehicle accident cases is to compensate the loss occurred to the members of the family of the deceased. Section 168 of the MV Act 1988 envisage only an enquiry by the Tribunal into any claim arising out of a motor accident and pass an award determining the amount of compensation, which appears to it to be just. It has been held in the catena of judgments that such compensation should be fair, reasonable and equitable. It is a settled proposition that the tribunals do not have unbridled freedom to render awards as per their individual notions. They are to be guided by the settled principles while assessing compensation. The hallmarks of justness, are reasonableness, fairness, consistency, uniformity and equitableness and these can be achieved only by following the settled principles evolved by courts relating to determination of compensation. In Secretary of State vs. 12 Gokul Chand AIR 1925 Lahore 636 Sir Shadilal CJ observed as under:-
''The law contemplates two sorts of damages; the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate''.
12. In Lata Wadhwa VS. State of Bihar and Others II (2001) ACC 316 (SC) the Supreme Court in para 8 observed as under:-
'' Damages are awarded on the basis of financial loss and the financial loss is assessed in the same way as prospective loss of earnings. The basic 13 figure, instead of being the net earnings, is the net contribution to the support of the dependents, which would have been derived from the future of the deceased. When the basic figure is fixed, then an estimate has to be made of the probable length of time for which the earnings or contribution would have continued and then a suitable multiple has to be determined (a number of years' purchase), which will reduce the total loss to its present value, taking into account the proved risks of rise or fall in the income''.
13. In United India Insurance Co. Ltd., vs. Patricia Jean Mahajan & Ors., II (2002) ACC 460 (SC) the Apex Court laid down the purpose of awarding compensation to the dependents of the victim. It was held that they should not be suddenly deprived of their source of maintenance. It was inter alia held as under:-
''The purpose to compensate the dependents of the victim is that they may not be suddenly deprived of the 14 source of their maintenance and as far as possible they may be provided with the means as were available to them before the accident took place. It will be a just and fair compensation. But in cases where the amount of compensation may go much higher than the amount providing the same amenities, comforts and facilities and also the way of life, in such circumstances also it may be a case where, while applying the multiplier system, the lesser multiplier may be applied. In such cases, the amount of multiplicand becomes relevant. The intention is not to over-compensate. "
14. In General Manager, Kerala State Road Transport Corporation, Trivandrum v Mrs.Susamma Thomas and others AIR 1994 SC 1631, the Supreme Court held as under:-
'' The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would 15 introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation''.
15. The Supreme Court relied on the observations of Lord Wright in Davies v Powell Duffryn Associated Collieries Limited, 1942 AC 601 '' The damages are to be based on the reasonable expectation of pecuniary benefit reducible to money value. In assessing the damages, all circumstances which may be legitimately pleaded in diminution of the damages must be considered .... The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.
The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of 16 his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lumpsum by taking a certain number of year's purchase. The sum, however, has to be taxed down by having done due regard to uncertainties .... ''
16. Adopting the said principle, the Supreme Court further held thus in Mrs. Susamma Thomas case (supra), regarding calculation of loss of dependency as under:-
'' The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependents, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed spend for the benefit of the dependents. Then that should be capitalized by multiplying it by a figure 17 representing the proper number of years purchase.
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last.
The multiplier represents the number of years' purchase on which the loss of dependency is capitalized ... Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the 18 dependents, whichever is higher) goes up.''
17. The principles laid down in Mrs.Susamma Thomas' case (supra) were reiterated by the Apex Court with approval in U.P. State Road Transport Corporation vs. Trilok Chandra 1 (1996) ACJ 582. It was emphasized in this case that there should be uniformity in the matter of determination of compensation and while determining the compensation the loss to the dependents has to be ascertained by first determining monthly income of the deceased, then deducting there from the amount spent on the deceased and thus assessing the loss of the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier. Therefore the principles for determination of the compensation in the case where the petitioners were depending on the deceased is by now standardized. However in a case where the petitioner is a legal heir but is not the dependent on the deceased, the method of 19 determining the compensation shall be different. In such a case the question of awarding any amount under the head of loss of dependency may not arise.
18. It has come on the record that the deceased was 1968 born and therefore he was only 33 years of age at the time of accident. It has been held in the catena of judgments that multiplier method is the most appropriate and proper method to determine the amount of compensation. The multiplier is adopted according to the age of the deceased or the claimants which ever is higher. In Tamil Nadu State Trans. Corpn. Ltd. vs. S.Rajapriya & Ors. 2005 ACJ 1441. In the said case the deceased was 38 years of age and the Apex Court adopted the multiplier of 12. Similarly in TNSTC Ltd. (Managing Director) v. K.I.Bindu IV (2005) ACC 350 (SC) the Apex Court adopted the multiplier of 12 in a case where the deceased was 34 years of age.
19. In the landmarked judgment of Sarla Dixit vs. Balwant Yadav AIR 1996 S C 1274, the deceased was a 20 young Indian Army Officer at the rank of Captain who was merely at the age of 27 years, the Apex court adopted the multiplier of 15. In the present case the deceased was 33 years of age. I consider that following the aforesaid precedent the appropriate multiplier in the present case would be of 13.
20. Now coming to the multiplicand, the petitioner has placed on record the pay slip of the deceased for the month of February 2001 which is Ex.PW2/1. The perusal of the pay slip of the deceased transpires as under:-
Credit Deductions
Amount Amount
Basic Pay 11925 AGIF 610
Rank Pay 1200 Car 11/200 700
D.A 5381 Income-tax 307
TPT Allce 500 Surcharge 854
K.M.A 200 DSOP Subn 5000
C.C.A 300 ADBF 60
PCA 11/125 400
Water 568
Electricity 3928
Remittance 7379
Total Credit 19806
21
21. Learned counsel for Insurance Company has argued that while determining the quantum of compensation only the loss suffered by the claimants have to be taken into account and therefore the deductions made from the salary are to be deducted from the gross salary and furthermore the fact that the petitioner no.1 is being granted pension at the rate of 2/3rd of the salary of the deceased is also required to be taken into account. In support of her contention learned counsel for Insurance Company has cited Asha & Ors vs. United India Insurance Co. Ltd. & Anr. 1(2004) ACC 533 (SC) and Inder Singh & Anr. vs. Ram Niwas & Ors. II (2004) ACC 405. In respect of the contention of learned counsel for Insurance Company regarding deduction of the family pension, I have come across judgment of our own Hon'ble High Court in Pushpa Devi and others vs. United India Insurance Co. Ltd. and others 2007 ACJ 1431 wherein the Hon'ble High Court while dealing with the case where the deceased was a Sub Inspector in Delhi Police, it was inter- alia observed as under:-
22
" There are various decisions of this court and Apex Court wherein it has been held that pensionary deductions cannot be taken into account while working the loss of dependency. The first is the decision of this court decision of this court reported in Delhi Transport Corporation vs. Veena Rani Sethi, 1989 ACJ 790 (Delhi). The said decision was followed in the decision reported as Elizebeth Mathew v. Vasdev, 1990 ACJ 461 (Delhi). Similar view was taken by the Apex Court in the report published in N.Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC)."
22. Similarly Hon'ble Justice Pradeep Nandrajog in FAO No.145/1985 titled as Smt.Padma Rani Rishi & Ors. vs. Balwant Singh & Ors. where also the deceased was a Government employee and the Tribunal while granting the award deducted the amount of family pension from the loss of dependency inter-alia observed as under:- 23
" I agree with learned counsel for the appellants that Tribunal has erred in deducting amount of family pension from the compensation. It is a settled law that benefit of family pension cannot be considered as death benefit but is a benefit which family of the deceased is entitled to get even otherwise on the retirement of the deceased. There is no co-relation between the death of the deceased in the vehicular accident and the amount of family pension received by the family of the deceased. "
23. Therefore the contention of learned counsel for Insurance Company regarding deduction of family pension from the loss of dependency cannot be accepted.
24. It is submitted by ld. counsel for the Insurance company that as per the judgment of the Hon'ble Supreme Court in case of Asha & Ors. V. United India Insurance Co. & Anr. 2004 ACJ 448 only the net income is to be taken into consideration. In Asha's case the gross income was Rs.8632/- and after deductions towards GPF, LIC, society 24 charges, HBA etc. the net income comes out to be Rs.6464/-.
25. The Hon'ble Supreme Court in Asha's case (supra) held that only the net income is to be taken into consideration after deduction. On the other hand learned counsel for the petitioner has relied upon Helan C Reballo's case (1999 page 1 SCC Cases page 90). In Asha's case (supra) Learned counsel has submitted that earlier decision in Helan's case has not been referred, where it was held that the amount received under LIC or under other social securities or towards provident fund cannot be deducted as the employee would have got this amount irrespective of his death in accident. Hon'ble High Court of Andhra Pradesh in case of A.Laxmi and Ors vs. Arjun Associated (P) Ltd., Madras and another 2004 (3) TAC 397 (AP) after relying upon the judgment of Hon'ble Supreme Court in case of Helan C Reballo (1999 page 1 SCC page 90) and considering Asha & Ors vs. United India Insurance Co,. & Anr 2004 ACJ 448 case held that the contribution made towards GPF, GIS and LIC etc. cannot be deducted. It was 25 inter-alia held as under:-
" 12. Coming to the other deductions, as far as LIC premium is concerned, it is no more res integra, in view of the judgment of the Supreme Court in Helen C. Rebello V. Maharashtra State Road Transport Corporation, 1999 ACJ 10, 1999 (1) TAC 1 (SC). The issue that came up for consideration before the learned judges of the Supreme Court is whether the Life Insurance Money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicles Act,1939? Their Lordships of the Supreme Court referred to various enactments relating to the social scheme benefit under the Insurance Act and held that the Insurance amount payable on the death of the deceased cannot be deducted. Though the payment might have been accelerated under the policy due to the sudden demise of the deceased, the insurance amount payable to the legal heirs of the deceased person has no nexus, whatsoever, with the statutory compensation payable under the Motor 26 Vehicles Act, since the policy under the insurance Act is a contractual one, the compensation payable under the Motor Vehicles Act is a statutory one. Of course, their Lordships held that in the event of mere insurance of the life of the employee against any unforeseen contingencies then such an amount is deductible from the compensation payable to the legal heirs of the deceased person.
From this it is seen that under the provisions of the Act every employee, whether he is in Government service or private service, is expected to contribute towards Provident Fund on the premise that his employer will also be contributing for his future needs. If an employee dies during the course of the employment, the account will be settled till that date only. The General Provident Fund contributions are not being paid and will not be carried further either by employer or the dependents of the employee. Likewise, on retirement from the service the amount shall be paid to the employee."27
26. In fact the Hon'ble Supreme Court in Helan C Reballo (1999 page 1 SCC Cases page 90) case also dealt with the aspect of contribution towards provident fund and held as under in para 35:-
" 35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by the employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all . .... Similarly any cash, bank balance, shares, fixed deposits, etc. through are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as 'pecuniary advantage' 28 liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not which, there is no semblance of any correlation ...."
27. Learned counsel for petitioner has argued that gross pay of the deceased at the time of his death is to be taken into account for the purpose of determining the amount of compensation. In this regard I consider that the allowances under the head of Transport and Kit maintenance allowances cannot be granted to the deceased as the same were personal to the deceased. Therefore for the purpose of determining the quantum of compensation Basic pay Rs.11925 + Rank pay Rs.1200 + D.A Rs.5381 + CCA in the sum of Rs.300/- is to be taken into account which comes out to Rs.18,806/-. Now the question is of the future prospects of the deceased. The deceased was a young officer of 33 years. He had a long service ahead of him. Had he not met with this unfortunate accident, he would have remained in service for a very long period. As I have discussed above in Sarla Dixit's case (supra), the deceased was a young Army Officer. The 29 Supreme Court while determining the quantum of compensation inter-alia held as under:-
" The deceased was the only breadwinner in the family. He was cut short in the prime period of life at the age of 27 by the accident caused by the truck. He had put in seven years of military service by that time. He was a Captain and was fully qualified for promotion to the rank of a Major at the time of his death. His gross salary at the time of his death was Rs.1543/- p.m. He had large number of years of military service ahead of him which would have certainly taken him to higher echelons in the military career.
Held, deceased was earning gross salary of Rs.1,543/- p.m. Rounding it up to figure of Rs.1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least 30 double than what he was earning at the time of his death i.e. up to Rs.3000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely Rs.1,500/- per month to the maximum which he would have otherwise got had he not died a premature death, i.e. Rs.3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2 i.e. Rs.2,200/-. Rs.2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities like payment of income-tax etc. That would roughly work out to Rs.730/- per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs.2,200/- per month balance of Rupees 1,450/-31
which can be rounded up to Rs.1,500/- per month would have been the average amount available to the family of the deceased i.e. his dependents. It is this figure which would be the datum figure per month which on annual basis would work out to Rs.18,000/-. Rs.18,000/- therefore, would be the proper multiplicand which would be available, for capitalization for computing the future economic loss suffered by the dependents on account of unfortunate death of the bread winner. As the age of the deceased was 27 years and a few months, at the time of his death the proper multiplier would be 15. Rs.18000/- multiplied by 15 will work out to Rs.2,70,000/-. To this figure will have to be added the conventional figure of Rs.15,000/- by way of loss of estate and consortium etc. That will lead to a total figure of Rs.2,85,000/-. This is the amount which the appellants would be entitled to get by way of compensation."
28. In the present case deceased was less than 33 years of age at the time of accident. As I have discussed above the proper multiplier in the present case would be of 13. If we peruse the document Ex.PW2/4 the salary of the deceased in 32 March 2001 was Rs.12250/- (basic) + Rs.1200/- rank pay i.e. Rs.1350/-. In the span of 14 years i.e. in January 2015, the salary of the deceased would have risen to Rs.21,150/- (basic Rs.19,150 + Rank Pay Rs.2000/-). This amount excludes the DDA, CCA and other benefits which might have been conferred on account of subsequent pay commission. Thus I consider that taking into account the future prospects as well as imponderables the income of the deceased can be doubled so as to estimate the future prospects of the deceased. Thus taking into account the future prospects, the salary of the deceased comes to Rs.37,612/- and if we take average of the two, it comes to Rs.28,209/-. Out of this 1/3rd is required to be deducted on account of personal expenses of the deceased which comes out to Rs.9403/- and therefore loss of dependency comes to Rs.18806/- p.m. or Rs.2,25,672/- per annum. Taking the multiplier of 13 the compensation comes to Rs.29,33,736/-. In addition to it a sum of Rs.30,000/- on account of loss of consortium and a sum of Rs.40,000/- on account of loss of love and affection (Rs.10,000/- each for two children and the aged parents) shall meed the ends of justice. 33 A sum of Rs.15,000/- is also granted on account of funeral expenses. Thus the total compensation comes to Rs.30,21,736/-.
29. The Insurance Company has examined 2 witnesses in respect of the Driving License. However during arguments learned learned counsel for Insurance Company has fairly submitted that driver was holding a valid driving license at the time of accident.
Relief
30. In view of the discussion made herein above, I consider and hereby pass an award in the sum of Rs.30,21,736/- which I consider to be just and fair as on the date of accident. The petitioner is also entitled for interest @ 7% p.a. R-1 to R-3 are jointly and severally liable. However R-1 being the Insurance Company is directed to deposit the awarded amount along with interest @ 7% p.a. from the date of filing of the petition till its realization. Out of the award amount, let 50% be paid to petitioner No.1, 15% each to petitioner No.2 and 3 and 34 10% each to R-4 and R-5. From the share of petitioner No.1, let Rs.7,00,000/- be kept in Post Office Monthly Income Scheme for a period of 7 years and Rs.5,00,000/- be kept in FDR in a Nationalized Bank for a period of 5 years. The petitioner shall be at liberty to withdraw the interest. The share of petitioners No.2 and 3 be kept in FDR in a Nationalized Bank till they attain the age of majority. Copy of the award be supplied to both the parties. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT Dated on 03.08.2007 (DINESH KUMAR SHARMA) JUDGE:MACT/NEW Delhi