Delhi High Court
Smt.Sunita Jain & Ors. vs Shri Ram Pal & Ors. on 5 September, 2008
Author: V.B.Gupta
Bench: V.B. Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO No.363 of 1996
% Judgment reserved on: 26th July, 2008
Judgment delivered on: 5th September, 2008
Smt.Sunita Jain,
Widow of Late Sh.Suil Kumar Jain
2.Miss Surbhi jain
D/o Late Sh.Sunil Kumar Jain
3.Master Abhishek Jain
S/o Late Sh.Sunil Kumar Jain
(Appellant No. 2 and 3 being minors
Through her mother/next friend/natural
Guardian, appellant No.1)
All r/o House No.52, Block A
Double Storey Quarters,
Patel Nagar-II,
Ghaziabad, U.P. ....Appellant
Through: Mr.Ashok Bhalla, Adv.
Versus
1.Shri Ram Pal,
Son of Sh.Shiv Lal,
R/o Village & Post Office Badli
Delhi.
2.Sh.Om Prakash Ved prakash
49, Laxmi Bai Nagar Market
New Delhi.
3.M/s National Insurance Co.Ltd.
FAO No.363 of 1996 Page 1 of 19
Divisional Office-14, (351400)
13/32, W.E.A. Arya Samaj Road,
Karol Bagh, New Delhi-110005. ...Respondents.
Through: Ms.Manjusha Wadhwa with
Ms.Gagandeep Kaur, Adv. for
respondent No.3.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
The present appeal under Section 173 of the Motors Vehicles Act, 1988 (for short as „Act‟) has been filed on behalf of the appellant for enhancement of the compensation to Rs. 35 lacs with costs through out and interest @ 18% p.a. from the date of filing of the petition till date.
2. Brief facts of this case are that on 11th July, 1990, Sunil Kumar Jain (since deceased) was going to his office on his two wheeler scooter No.DHE-6718. At FAO No.363 of 1996 Page 2 of 19 about 9.05 a.m., when he was reached National Highway, Nizamuddin Bridge (near Pole No.41) at a slow speed and was on his left side, a bus No.DEP- 3898 came from behind and hit the scooter of Sunil Kumar Jain. As a result of forceful impact on the scooter, deceased was thrown off on the road and he was crushed under the front wheel of the offending bus. He died on the spot.
3. This accident occurred due to rash and negligent driving on the part of the driver of the offending bus respondent No.1. The bus is owned by respondent No.2 and insured with respondent No.3.
4. The case of the appellant is that deceased was working as a Company Secretary with M/s Montari Industries Ltd. and was drawing a monthly income of Rs.9,500/-. It is further stated that deceased was a talented young professional. He was M.A.LL.B and he was holding a Diploma in Personal and Industrial Management. By virtue of his qualification, deceased FAO No.363 of 1996 Page 3 of 19 would have risen to the position of a Chief Executive in a large industrial undertaking and would have earned the income of Rs.25,000/- per month, for at least 30 years. The claimants have assessed the loss of dependency at Rs.10,000/- per month and have claimed compensation of Rs.30 lacs. Further compensation of Rs.5 lacs has been claimed on account of pain and agony, loss of happy and comfortable life, loss of enjoyment, etc.
5. All the respondents filed their written statements before the trial court and contested the claim petition.
6. Vide impugned judgment dated 7th December, 1995 an award for a sum of Rs.7,45,920/- was passed in favour of the appellants and against the respondents. Appellants were also awarded interest @ 12% per annum from the date of filing of the petition to the date of its realization.
7. Being aggrieved with the order of the Tribunal, the appellants have filed the present appeal seeking enhancement of the compensation.
FAO No.363 of 1996 Page 4 of 19
8. It has been contended by learned counsel for the appellants that the Tribunal has wrongly taken the monthly income of the deceased as Rs.5,550/-. In fact as per the case of the appellants, the deceased was drawing a monthly salary of Rs.9,500/- per month plus other perquisites. The appellant has proved on record the last drawn salary certificate of the deceased. The total computation of this salary certificate of the deceased are follows:-
Basic salary Rs.4,600/- p.m.
Company Lease Rs.2,750/- p.m.
Accommodations
Conveyance allowance Rs.1,200/- p.m.
Personal Pay Rs. 600/- p.m.
Entertainment allowance Rs. 350/- p.m.
-------------------
Total Rs.9,500/-p.m.
-------------------
Plus other perquisites and monetary benefits as per Rules of Company.
9. The Tribunal took into consideration only the basic pay, personal pay and entertainment allowance. FAO No.363 of 1996 Page 5 of 19 It did not take into consideration the company lease accommodation and conveyance allowance, which it ought to have taken.
10. Further, it is contended that future prospects of the deceased were not considered at all by the Tribunal though, the claimants have mentioned about the same in the claim petition and PW1 & PW2 have also deposed about the same.
11. On the other hand, it has been argued by learned counsel for the respondent-Insurance Company that the Tribunal has rightly taken the monthly income of deceased as Rs.5,500/- which is as per documents Ex.PW-1/C and which gives the break up of the salary of the deceased as on 3rd May, 1990. The Tribunal rightly did not include conveyance allowance, leave travel allowance and medical reimbursement allowance, which was personal to the deceased and which could not be formed part of the dependency.
12. Regarding future prospects, it is contended by learned counsel for the respondent-Insurance FAO No.363 of 1996 Page 6 of 19 Company that PW-2 who is the widow of the deceased in her cross-examination has admitted that there was no time bound promotion. Thus, the Tribunal rightly, did not consider the future prospects.
13. Learned counsel for the respondent in support of her contention has cited Oriental Insurance Company Limited v. Jashuben and Ors., 2008 INDLAW SC 210, in which it has been laid down that;
"What would have been the income of deceased on the date of retirement, was not a relevant factor in the light of particular facts of this case."
14. Regarding the plea that the Tribunal has not taken into consideration conveyance allowance and company lease accommodation to compute the loss of earnings, appellant no. 1 has appeared in the witness box and had stated that the deceased was drawing a salary of Rs.12,000/- per month at the time of his death.
FAO No.363 of 1996 Page 7 of 19
15. However, in the petition, the income of the deceased at the time of accident has been mentioned, as Rs.10,000/- approximately.
16. The certificate Ex. PW2/C issued by Montari Industries Ltd. gives the break-up of salary as on 03.05.90 in respect of the deceased as follows:-
(i) Basic Pay : Rs.4,600/-
(ii) Personal Pay : Rs.600/-
(iii) Others : Rs.350
(Entertainment
allowance)
17. The certificate further states that the deceased was entitled for company lease accommodation, conveyance reimbursement and annual perquisites like LTA, Medical reimbursement as applicable at his level in the company.
18. The Tribunal while assessing the compensation, has taken the monthly income of the deceased at Rs.5,550/- as per certificate issued by the employer. FAO No.363 of 1996 Page 8 of 19
19. Reverting back to the contentions raised by the counsel for the appellant claiming inclusion of company lease accommodation and conveyance allowances while considering the net income of the deceased, the recent decision of the Apex Court in National Insurance Co. Ltd. v. Indira Srivastava and others, 2008 ACJ 614, will clinch the entire controversy involved in the present appeal.
20. In the above said case, the Apex Court has observed as under;
"The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated in monitory terms.
Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining FAO No.363 of 1996 Page 9 of 19 the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard-working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of entire family. In some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined."
The Apex Court further observed;
"That if some facilities are being provided by the employer whereby the entire family stands to benefit, the same must be held to be relevant for the purpose of computation of total income of the deceased"
21. The Andhra Pradesh High Court in S.Narayanamma and Ors. v. Secretary to Government of India and Ors., II (2002) ACC 582, following Helen C. Rebello (Mrs.) and others v. FAO No.363 of 1996 Page 10 of 19 Maharashtra State Road transport Corporation and another, II (1998) ACC 512, held that;
"The contributions made by the deceased-employee towards Employees' Provident Fund, Life Insurance (LIC), Group Insurance and the deductions shown in the salary certificate of the deceased- employee towards the vehicle loan instalment, benefit fund, and also the amounts received by the deceased- employee towards interim Relief, Special Pay, Dearness Allowance, House Rent Allowance, need not be deducted from the gross salary of the deceased for ascertaining the income, because the contributions/deductions made towards, E.P.F., L.I.C., Group Insurance and Benefit Fund would be beneficial to the family of the deceased-employee and it would be the estate of the deceased."
22. Thus, in view of the above discussions, the Tribunal has not taken proper care while deducting the amounts from the salary of the deceased. The deductions made by the tribunal from the salary such as company lease accommodation cannot be deducted while computing the net monthly earnings of the deceased.
FAO No.363 of 1996 Page 11 of 19
23. In so far as his basic salary of Rs.4,600/- p.m., personal pay of Rs.600/- p.m. and entertainment allowance of Rs.350/- p.m. are concerned, there cannot be any dispute.
24. The company lease accommodation of Rs.2,750/- per month had to be considered by the Tribunal and it is not such an allowance, which should be reduced while computing the net monthly earnings of the deceased.
25. However, conveyance allowance is exclusively personal to his professional expenditure and it has to be ignored.
26. The above findings of the tribunal are contrary to the principle of 'just compensation' enunciated by the Supreme Court in the judgment in Divisional Controller, KSRTC v. Mahadeva Shetty, AIR 2003 SC 4172, where the Apex Court has observed as under;
FAO No.363 of 1996 Page 12 of 19
"It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be "just". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for FAO No.363 of 1996 Page 13 of 19 measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just"
compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-
arbitrariness. If it is not so, it cannot be just. (See Helen C. Rebello v.
Maharashtra State Road Transport Corporation & another, II (1998) ACC
512.)"
27. Thus, taking the monthly salary of deceased at Rs.8,300/- per month (Basic salary Rs.4,600/- p.m.;
Company Lease Accommodation Rs.2,750/- p.m.;
Personal Pay Rs.600/- p.m.; Entertainment allowance Rs.350/- p.m.) and after deducting 1/3rd amount for personal expenses, the net salary comes to Rs.5,534/-FAO No.363 of 1996 Page 14 of 19
per month, which is rounded off as Rs.5,500/- per month. Thus, applying the multiplier of 16, the total dependency comes to Rs.5,500x12x16=Rs.10,56,000/-.
28. As regards the future prospects, the Apex Court in Oriental Insurance Company Limited v.
Jashuben and Others (supra), as cited by the respondent counsel has observed as under;
"Salary would be revised or not was not known at that part of time. Only because such salary was revised at a later point of time, the same by itself would not have been a factor which could have been taken into consideration.
The amount of compensation indisputably should be determined having regard to the pecuniary loss caused to the dependants by reason of the death of the victim. It was necessary to consider the earnings of the deceased at the time of the accident. Of course, future prospect is not out of bound for such consideration. But the same should be founded on some legal principle. The Apex Court has further observed as under;
"We, therefore, are of the opinion that what would have been the income of the deceased on the date of FAO No.363 of 1996 Page 15 of 19 retirement was not a relevant factor......."
29. In Oriental Insurance Co. Ltd. v. Smt. Kailash Mehta, 1993 ACJ 970, the Gauhati High Court held that;
"It is well settled that deduction from the calculated amount of compensation to the maximum extent of 30 per cent thereof is to be made because of uncertainty of life and lump sum payment of compensation."
30. In the present case, no such deduction have been made on the account of uncertainty of life.
31. Hence, the contentions regarding future prospects made by the counsel for Appellants are rejected.
32. Accordingly, the award passed by the learned Tribunal is modified to the extent that appellants are entitled to a total of sum Rs.10,56,000/- as compensation, which is just and fair.
33. The appellants have also claimed interest @ 18% p.a. from the date of filing of the petition till date. FAO No.363 of 1996 Page 16 of 19
34. The Tribunal has awarded the interest @ 12% p.a. from the date of filing of the petition to the date of its realization.
35. Section 171 of the Act provides for the award of interest where any claim is allowed. It reads as under;
"Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
36. Though this Section confers a discretion on the Tribunal to award interest, but the same is meant to be exercised in cases where the claimant can claim the same as a matter of right.
37. While determining rate of interest and period for which the same is sought to be granted, the Tribunal shall give due consideration to the fact as to whether the claim proceedings sought to be lingered either by the claimant or owner or insurer, so that it may act as FAO No.363 of 1996 Page 17 of 19 deterrent against the earning party and compensatory for the other.
38. The present appeal was filed in the year 1996 but the appellant did not take any steps for getting respondents served till 2008. So, this delay of 12 years in the disposal of the present appeal is clearly attributable to the appellants.
39. It is well-settled that „delay and laches‟ cannot command premium. Thus, the appellants are not entitled to any interest for the period for which this appeal was pending before this Court.
40. All the Motor Accident Tribunals should follow the above guidelines and at the time of awarding interest, they should not lose sight of the fact, as to whether claimant or owner or insurer, has caused delay in the trial.
41. Since, the award has been enhanced in this case, the appellants are awarded interest @ 8% p.a. for the FAO No.363 of 1996 Page 18 of 19 enhanced portion only, from the date of filing of the petition in the Tribunal till the date of judgment of the Tribunal.
42. This additional compensation shall be payable by respondent no.3/Insurance Company within four weeks from today, failing which the Insurance company shall be liable to pay the interest @ 8% p.a., till the time the additional compensation is paid.
43. Accordingly, the appeal stands allowed to the above extent.
44. Registrar General of this Court, shall send copy of this judgment to all the Tribunals for their information and guidance.
45. No orders as to costs.
46. Trial court record be sent back. September 05, 2008 V.B.GUPTA, J.
Bisht FAO No.363 of 1996 Page 19 of 19