Delhi District Court
Smt Mamta vs Sh. Vinod Kumar Sharma on 16 March, 2012
IN THE COURT OF SHRI CHANDRA BOSE:
JUDGE:MACT:DELHI
MACT NO. : 228/11
Case ID NO. : 02404C0206722011
1. Smt Mamta, W/o Late Sh. Vishal Kumar,
2. Ms. Megha, D/o Late Sh. Vishal Kumar,
3. Ms. Nancy, D/o Late Sh. Vishal Kumar,
4. Smt Suita, W/o Sh. Pardeep Kumar,
5. Sh. Pardeep, S/o Sh. Brahmn Prakash,
All R/o JB3/3040, Gali No. 2, JB3, Welcome,
Seelampur, Delhi.
Also at: JN330, 40, Welcome Colony,
Seelampur, Delhi. ..........Claimants/Petitioners of
deceased Vishal Kumar.
1. Sh. Prem Kumar, S/o Sh. Kishori,
2. Smt Sheela, W/o Sh. Prem Kumar,
Both R/o JB3/38, JB2III, Welcome,
Seelampur, Delhi53. ..........Claimants/Petitioners of
deceased Sh. Vikas.
MACT No. 228/11 1 of 16
Versus
1. Sh. Vinod Kumar Sharma, S/o Sh. GC Sharma,
R/o 97, Block B, Pkt4, Sector 11,
Rohini, Delhi85. ........... Driver/R1
2. Sh. Arun Jain @ Arun Kumar Jain,
S/o Sh. PP Jain,
R/o 6465, Govind Market,
Clock towner, Subzi Mandi, New Delhi. ..... Regd.Owner/R2
3. National Insurance Company Ltd.
1718, Inderprastha Bhawan,
IInd Floor, New Sabzi Mandi,
Azadpur110033. .....Insurance co./R3
DATE OF INSTITUTION (PETITIONS): 02.06.11
DATE OF INSTITUTION (DAR) : 06.07.11
DATE OF RESERVING ORDER : 03.11.11
DATE OF PRONOUNCEMENT : 16.03.12
AWARD
01. Two petitions were filed on 02.06.11 in respect of death of
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two deceased namely Sh. Vishal Kumar and Sh. Vikas and same were
kept pending for awaiting of DAR for 13.07.11. On 06.07.11, DAR
was filed and said claim petitions were taken and clubbed with DAR
and were registered as such and case was adjourned for filing legal
offers on behalf of insurance company and thereafter, case was
adjourned for consideration of legal offers by the petitioner/Lrs of both
deceased. On 03.11.11, it was submitted by counsel for Lrs of both the
deceased that legal offers are not acceptable and as such, I heard
arguments of counsel for Lrs of both the deceased and counsel for
insurance company on the point of quantum of compensation.
02. In its legal offer filed for compensation in respect of death
of deceased Vishal Kumar, insurance company has considered income
of the deceased on the basis of minimum wage applicable on the date
of accident. It is submitted by counsel for Lrs of deceased Vishal
Kumar that he was working as a caretaker in Department of Social
Welfare, Government of N.C.T of Delhi, on contract basis at the time
of his death and was drawing a consolidated salary of Rs. 12,000/ per
month. This fact has not been disputed on behalf of insurance
company but insurance company has not considered the salary of
deceased on the ground that contract was only for one year and was to
expire on 06.05.11. I do not agree with the contention of counsel for
insurance company in this regard since I have to see as to what the
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deceased was earning at the time of his death. Moreover, the contract
of deceased may have been renewed. Therefore, I take the income of
deceased Vishal Kumar as Rs. 12,000/ per month on the date of
his death.
03. In its legal offer filed for compensation in respect of death
of deceased Vishal Kumar, insurance company has rightly deducted
1/4th towards personal and living expenses of the deceased from his
income as per case law namely Smt. Sarla Verma & Ors Vs. Delhi
Transport Corporation & Anr. 2009 (V) AD(136). If we deduct
1/4th from his monthly income i.e. 12,000 - 3,000 (1/4th of Rs.
12,000/), we arrive at a figure of Rs. 9,000/. This can be said to be
the loss of monthly dependency to the claimants of deceased Vishal
Kumar and annual loss of dependency comes to Rs. 1,08,000/ (Rs.
9,000/ * 12 months).
04. In its legal offer filed for compensation in respect of death
of deceased Vishal Kumar, insurance company has rightly considered
the multiplier of '18' in view of ratio of case law namely Smt. Sarla
Verma Vs DTC(Supra) for the purpose of calculating the loss of
dependency of the claimants of deceased Vishal Kumar. Hence,
after applying multiplier of '18' to the multiplicand of Rs.
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1,08,000/, we arrive at a figure of Rs. 19,44,000/ towards
compensation on account of loss of dependency of the claimants of
deceased Vishal Kumar.
05. In addition to it, claimants of deceased Vishal Kumar are
entitled to be compensated for loss of love and affection. They will
miss through out their life. Nothing can ever compensate the actual
loss. Only a humble attempt is made by the Tribunal to apply soothing
balm over their wounds. As such, they are granted Rs. 25,000/ for
loss of love and affection. Rs. 10,000/ is also granted to them
towards loss of estate and Rs. 10,000/ is also granted to claimant
no. 1 towards loss of consortium.
06. In addition to it, claimants of deceased Vishal Kumar are
entitled to be compensated for funeral expenses. The second schedule
has prescribed a figure of Rs. 2,000/ which is very much on the lower
side. When price of all the commodities are revised from time to time
and even minimum wages are being periodically increased, there is no
point in sticking to low figure of Rs. 2,000/. Let they be paid Rs.
5,000/ towards funeral expenses as lot of money is required to be
spent on numerous religious rites and ceremonies and also on
transportation of body.
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07. In view of above additions, total compensation payable
to claimants of deceased Vishal Kumar is as under:
1. Loss of dependency : Rs. 19,44,000/
2. Loss of Love & Affection : Rs. 25,000/
3. Loss of Estate : Rs. 10,000/
4. Loss of consortium : Rs. 10,000/
5. Funeral Expenses : Rs. 5,000/
Total : Rs. 19,94,000/
08. In view of the aforesaid discussions, I hereby hold that
claimants of deceased Vishal Kumar are entitled to net amount of
Rs. 19,94,000/.
09. In its legal offer filed for compensation in respect of death
of another deceased Vikas, insurance company has wrongly
considered minimum wage of Rs. 6,084/ applicable on the date of
death of his death as on 27.04.11, Rs. 6,422/ was minimum wage
under the category of unskilled. Insurance company has also not
considered increase in minimum wages to meet the increase in price
index and inflation rate. Therefore, I take Rs. 6,422/ as monthly
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income of deceased which is minimum wage under the category of
unskilled on the date of death of deceased Vikas.
10. It is well settled by Catena of Judgments of the Hon'ble
High Court that our own Hon'ble High Court has taken judicial notice
of the increase in minimum wages to meet the increase in price index
and inflation rate. Hon'ble High Court has taken the view that the
minimum wages get doubled over the period of 10 years and increase
in minimum wages is not akin to future prospects.
11. I rely upon the case law namely Santosh Devi, Appellant,
Vs. Abdul Kareem & Others Respondents decided on 08th October,
2009 in MAC.APP No. 440/2009 and Reshma & Ors. Appellant Vs. Harish Kaushik & Ors Respondents decided on 11th December, 2009 MAC.APP 560/2007 in which it was held that " the income of the deceased should be computed by taking the average of minimum wages at the time of accident and its double".
12. In recent judgment namely Smt Kiran Devi and others, appellants Vs Surjit Yadav and others, respondents, in MAC.APP No. 511/09 decided on 18.01.10, it has been held by considering earlier judgments by Hon'ble Justice JR Midha of Hon'ble High Court that "Judicial notice be taken by Tribunal of the fact that MACT No. 228/11 7 of 16 Minimum Wages gets almost doubled over a period of ten years".
13. Following the aforesaid Judgments cited as above, the income of the deceased is computed by taking the average of minimum wage of Rs. 6,422/ per month at the time of accident and its double which comes to Rs. 9,633/ (6,422+12,844/2).
14. Since deceased Vikas was bachelor and only mother can be considered as financially dependent upon him, as such, the deduction would be 50% towards personal and living expenses of the deceased from his income as per case law namely Smt. Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr. 2009 (V) AD(136). If we deduct 50% from his monthly income i.e. Rs. 9,633 - 4,816.50 (50% of 9,633/), we arrive at a figure of Rs. 4,817/. This can be said to be the loss of monthly dependency to the claimants of deceased Vikas and annual loss of dependency comes to Rs. 57,804/ (Rs. 4,817/ * 12 months).
15. In amended legal offer filed by insurance company for deceased Vikas, insurance company has considered the multiplier as '11' as per age of father of deceased whereas as per case law namely Smt. Sarla Verma & Ors Vs. Delhi Transport Corporation & Anr. 2009 (V) AD(136) , mother has been considered as financially MACT No. 228/11 8 of 16 dependent upon the income of deceased bachelor and therefore, multiplier would be applicable as per her age. The age of mother of deceased Vikas as per photocopy of her election ID card is 36 years as on 01.01.02. The date of death of deceased is 27.04.11. Therefore, the age of mother of deceased Vikas was more than 45 years on the date of death of deceased Vikas. Therefore, I am of the view that in view of ratio of case law namely Smt. Sarla Verma Vs DTC(Supra), the multiplier of '13' is applicable in the present case for the purpose of calculating the loss of dependency of the claimants of deceased Vikas. Hence, after applying multiplier of '13' to the multiplicand of Rs. 57,804/, we arrive at a figure of Rs. 7,51,452/ towards compensation on account of loss of dependency of the claimants of deceased Vikas.
16. In addition to it, claimants of of deceased Vikas are entitled to be compensated for loss of love and affection. They will miss through out their life. Nothing can ever compensate the actual loss. Only a humble attempt is made by the Tribunal to apply soothing balm over their wounds. As such, they are granted Rs. 20,000/ for loss of love and affection. Rs. 10,000/ is also granted towards loss of estate.
17. In addition to it, claimants of deceased Vikas are entitled to MACT No. 228/11 9 of 16 be compensated for funeral expenses. The second schedule has prescribed a figure of Rs. 2,000/ which is very much on the lower side. When price of all the commodities are revised from time to time and even minimum wages are being periodically increased, there is no point in sticking to low figure of Rs. 2,000/. Let they be paid Rs. 5,000/ towards funeral expenses as lot of money is required to be spent on numerous religious rites and ceremonies and also on transportation of body.
18. In view of above additions, total compensation payable to claimants of deceased Vikas is as under:
1. Loss of dependency : Rs. 7,51,452/
2. Loss of Love & Affection : Rs. 20,000/
3. Loss of Estate : Rs. 10,000/
4. Funeral Expenses : Rs. 5,000/ Total : Rs. 7,86,452/
19. In view of the aforesaid discussions, I hereby hold that claimants of deceased Vikas are entitled to net amount of Rs. 7,86,452/.
MACT No. 228/11 10 of 16
20. In its legal offer, insurance company has deducted 50% of the compensation amount from total compensation of both the deceased on the ground that motorcycle no. DL7SAM5991 has contributed to the alleged accident but it has not been mentioned in the legal offer as to how driver of the said motorcycle was responsible for contributory negligence. It has also not been stated as to how the driver of said motorcycle vehicle was responsible for contributory negligence. Therefore, I do not agree with the contention of counsel for insurance company in this regard and as such, no deduction on this count may be made from the compensation amount of both the deceased. Therefore, insurance company is liable to pay compensation without any deduction.
21. In view of the above, insurance company is directed to pay compensation amount of both the deceased as awarded above, within 45 days from today and in case of delay, insurance company shall be liable to pay interest at the rate of 12% per annum for delayed period.
22. The compensation amount of Rs. 19,94,000/ awarded to the claimants of deceased Vishal Kumar is apportioned between them as under :
1. Claimant no.1 : Rs. 6,69,000/
2. Claimant no.2 : Rs. 6,00,000/ MACT No. 228/11 11 of 16
3. Claimant no.3 : Rs. 6,00,000/
4. Claimant no.4 : Rs. 1,00,000/
5. Claimant no.5 : Rs. 25,000/
23. The compensation amount of Rs. 7,86,452/ awarded to the claimants of deceased Vikas is apportioned between them as under :
1. Claimant no.1 : Rs. 86,452/
2. Claimant no.2 : Rs. 7,00,000/
24. As such insurance company is directed to deposit the cheques of the awarded amount in the name of claimants of both deceased in Union Bank of India, Sector9, Rohini, Delhi through its Branch Manager in the accounts to be opened by them, within 45 days from today and in case of delay, insurance company shall be liable to pay interest at the rate of 12% per annum for delayed period.
25. Upon the aforesaid amount of claimants of deceased Vishal Kumar being deposited, the Union Bank of India, is directed to release Rs. 69,000/ out of awarded amount of claimant no. 1 of deceased Vishal Kumar and entire awarded amount of claimants no. 4 and 5 of deceased Vishal Kumar by transferring the same into their saving bank accounts. The entire awarded amount of claimants no. 2 MACT No. 228/11 12 of 16 and 3 of deceased Vishal Kumar be kept in FDRs in their names till their age of majority. The remaining amount of claimant no. 1 of deceased Vishal Kumar be kept in fixed deposit in her name in the following manner :
(i) Fixed deposit in respect of 20% of the remaining awarded amount for a period of one year.
(ii) Fixed deposit in respect of 20% of the remaining awarded amount for a period of two years.
(iii) Fixed deposit in respect of 20% of the remaining awarded amount for a period of three years.
(iv) Fixed deposit in respect of 20% of the remaining awarded amount for a period of four years.
(v) Fixed deposit in respect of 20% of the remaining awarded amount for a period of five years.
26. Upon the aforesaid amount of claimants of deceased Vikas being deposited, the Union Bank of India, is also directed to release entire awarded amount of claimant no. 1 of deceased Vikas by transferring the same into his saving bank account. The entire awarded amount of claimant no. 2 of deceased Vikas be kept in fixed deposit in her name in the following manner :
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(i) Fixed deposit in respect of 10% of the remaining awarded amount for a period of one year.
(ii) Fixed deposit in respect of 10% of the remaining awarded amount for a period of two years.
(iii) Fixed deposit in respect of 10% of the remaining awarded amount for a period of three years.
(iv) Fixed deposit in respect of 10% of the remaining awarded amount for a period of four years.
(v) Fixed deposit in respect of 10% of the remaining awarded amount for a period of five years.
(vi) Fixed deposit in respect of 10% of the remaining awarded amount for a period of six years.
(vii) Fixed deposit in respect of 10% of the remaining awarded amount for a period of seven years.
(viii) Fixed deposit in respect of 10% of the remaining awarded amount for a period of eight years.
(ix) Fixed deposit in respect of 10% of the remaining awarded amount for a period of nine years.
(x) Fixed deposit in respect of 10% of the remaining awarded amount for a period of ten years.
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27. The interest on the aforesaid fixed deposits shall be paid quarterly by automatic credit of interest in the Saving Account of the claimants.
28. The claimants shall not be having any facility of loan or advance on these FDRs. However, in case of emergent need, they may approach this court for premature withdrawal of any amount.
29. Withdrawal from the aforesaid account shall be permitted to the claimants after due verification and the Bank shall issue photo identity Card to them to facilitate identity.
30. No cheque book be issued to the claimants without the permission of this court.
31. The Bank shall issue Fixed Deposit Pass Book instead of the FDRs to the claimants and the maturity amount of the FDRs be automatically credited to the Saving Bank Account of the beneficiaries at the end of the FDRs.
32. On the request of the claimants, Bank shall transfer the Saving Account to any other branch according to their convenience.
33. The claimants shall furnish all the relevant documents for opening of the Saving Bank Account to the Branch Manager, Union Bank of India, Sector9, Rohini, Delhi85. No joint account be opened in their names.
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34. Copies of this order be given to parties for compliance. Copy of this order be also sent to Branch Manager, Union Bank of India, Sector9, Rohini, Delhi85.
35. DAR is disposed of on aforesaid terms. File be consigned to record room.
ANNOUNCED IN THE OPEN (CHANDRA BOSE)
COURT ON 16.03.12 JUDGE/MACT:ROHINI
DELHI
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