Kiran Bhardwaj & Ors v. Reliance General Insurance & Ors

JUDGMENT : REVA KHETRAPAL, J.

¶1By way of this appeal, the appellants seek to assail the judgmentand award dated 04.12.2009passed by the learnedMotor AccidentClaimsTribunalon the groundthat the ClaimsTribunalhas notawardedcompensationto them in consonancewithlaw. Pase l of12 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing.

¶2The facts relevantfor decidingthe present appeal are that on

16.12.2007,one Shri Vikas Bhardwaj(hereinafterreferredto as "the deceased") was going from Clock Tower to Shakti Nagar on G.T.Road, on his two wheeler scooter bearing No. DL-6SJ-1265, when suddenlyatempobearingNo. UP-14U-9107,whileover-taking the deceased,hit his two wheelerscooter. Due to forceftilimpact,the deceasedsustainedgrievousinjuries.He was removedto Hindu Rao Hospital and thereafterto Sir Ganga Ram Hospital, where he was declaredbrought dead. A case bearingFIR No.387/2007 (wrongly noted as 397/2007 in the award of the Tribunal) was registered under Sections 279/338/304A IPG at Police Station Roop Nagar against the respondentNo.2,the driverofthe allegedoffendingtempo.

¶3On a claim petitionfiled under Section 166 read with Section 140of the Motor VehiclesAct, 1988 for grant of compensationby the appellants,who are the parentsofthe deceased,the GlaimsTribunal on the evidence on record held the appellants entitled to receive compensationin the sum of ? 5,20,000/-with interestat the rate of

7.5% per annum from the date of the filing of the petition i.e. Pase 2 of12 //

07.02.2008till its realization,inclusiveof the interimawardreceived by the appellants.

¶4Aggrievedby the aforesaidawardof compensation,the present appeal has been filed by the appellantson the ground that a very meager amount of compensationhas been awarded by the learned Tribunal,keepingin view the fact that the deceasedhad a stablejob and in due course of time, he would most certainly have made advancement in his career. According to the appellants, the Claims Tribunal while computingthe loss of dependencyof the appellants ought to have taken into considerationthe future prospects of the deceased and the fact that in due course of time the income of the deceased would have increased considerably. Another contention of the appellantsis thatthe Tribunalerredin takinginto accountthe age of the father of the deceased, whereas the age of the mother of the deceasedought to have been the governingfactor for the choice of multiplier by the Tribunal.

¶5After hearing Mr. V.K.Kalra, the learned counsel for the appellants and Mr. Sameer Nandwani, the learned counsel for the Pase 3 of12 )2-respondent No.l, I am inclined to agree with the submission of Mr. Kalra that keeping in view the evidence on record, the Claims Tribunalought to have taken into considerationthe future prospects of the deceased. I say so for the reason that the deceased was indisputably23 years of age at the time of his accidentaldeath and was earning? 7,500/-per monthas per the salarycertificateissuedby his employerand provedon recordby PWl-Smt.Kiran Bhardwaj as Ex. PWl/1 and PW4-Shri Vinit Bhatia, Accounts Manager, M/s. GoldenHighwayGoods Carrier,who producedthe wages/salary record of the deceased. PW4-Shri Vinit Bhatia categorically stated that the salarycertificateEx. PWl/1 hadbeen issuedfrom theiroffice and was signed by Shri Gagandeep Singh Kalra, partner of M/s. GoldenHighwayGoods Carrier(Regd.). He furtherproved on record that the salary of the deceased was shown at Point-A to be ?7,500/-per monthin the four documents,Ex. PW4/1 to Ex. PW4/4, which were letters addressed by the firm to the Bank for transfer of amounts mentioned in the letters in the accounts of various employees mentioned therein. The said letters were accompanied by cheques of \ Pase 4 of12 1} the amountsfor which transferswere to be made and the said cheques were dated 04.09.2007,28.09.2007,01.11.2007and 04.12.2007and reflected the salary of the deceased for the months of August, September, October and November,:2007 respectively. He also proved on record the copy ofthe bank statementfor the months of September, November and December, 2007 as Ex. PW4/5 to Ex. PW4/7. 6, In his cross-examination, the testimony of PW4-Shri Vinit Bhatia could not be shaken. He furnished on record the authority letterissuedby the Companyin his favouras Ex. PW4/R-1 and stated that apartfrom the recordbroughtby him, his officewas also having the ESI record and the bankrecordpertainingto the deceasedandthat when a personwas employedintheirCompany,an appointmentletter was issued. He stated that at the time of joining of service, the salary of the deceased was ^ 6,500/- per month and as in the case of every otheremployee,the salaryofthe deceasedwas transferredto his bank account. He further stated that ^ 7,500/- was the net salary of deceased at the time of his death and that he was working in their Pase 5 of12 Company as booking/billingclerk. He categorically denied the suggestion that the documents Ex. PW4/1 to Ex. PW4/7 were fabricated documents.

¶7From the aforesaidevidenceon record, it clearlyemergesthat the deceasedhad a stable and permanentjob and that at the time of joining,his salarywas ^ 6,500/-permonth,whichhad beenincreased to ? 7,500/-per month.PW2-ShriChunniLai, Assistantin ESI Subzi MandiBranchproducedthe summonedlazersheetofthe deceasedas Ex. PW2/1 and Ex. PW2/2 and testified that as per the record the deceased was a member of ESI from 31.05.2005. This clearly shows that from 31.05.2005, when the deceased had joined service with M/s. Golden Highway Goods Carrier (Regd.), he had made considerableprogresstill 16.12.2007,that is, the date ofthe accident. In a short span of about 2V2 years his salary had increased by ? 1,000/-per month. He was only 23 years of age at the time of his unfortunatedemise and with the passage of time, he would have most certainlymade rapid strides in his job. I am, therefore,inclinedto acceptthe contentionof the learnedcounselfor the appellantthat the Pase 6 of12 /r Claims Tribunal while assessingthe income of the deceasedfor the purposeof computingthe loss of dependencyofthe appellantsought to have taken into account the future increase in the income of the deceased.

¶8In this context, reference may be made to paragraphs 10 and 11 of the decision of the Supreme Court in Smt. Sarla Verma and Others versus Delhi Transport Corporation and Others, (2009) 6 see 121, which are as under: "10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note offuture prospects. In Susamma Thomas, this Court held that the future prospects ofadvancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of thefuture and it will be unreasonable to estimate the loss of dependency on the actual income ofthe deceased at the time ofdeath. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs. 1032/- per month. Having regard to the evidence in regard tofuture prospects, this Court was of the view that the Pase7ofl2 higherestimateofmonthlyincome couldbe made at Rs. 2000/-as gross income beforedeductingthe personallivingexpenses],The decisionin Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav , where the deceased was getting a gross salary ofRs. 1543/-per month. Havingregard to thefuture prospects ofpromotionsand increases, this Court assumed that by the time he retired, his earningwouldhave nearlydoubled,say Rs. 3000/- . This Court took the average of the actual income at the time of deathand theprojected incomeifhe had liveda normal lifeperiod, and determinedthe monthlyincomeas Rs. 2200/-per month. In Abati Bezbaruah v. Efy. Directgor General, Geological Survey of India, as against the actual salary incomeofRs. 42,000/-per annum, (Rs. 3500/-per month) at the time ofaccident,this Courtassumed the income as Rs. 45,000/- per annum, having regard to the future prospects and career advancementof the deceasedwho was 40years of age.

¶11In Susamma Thomas, this Court increased the income bynearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%). In view of imponderables and uncertainties, we are infavour ofadopting as a rule ofthumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words ^actual salary' should be read as ^actualsalary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no Pflgg 8 of12 addition, where the age of deceased is more than 50 years. Though the evidence may indicate a differentpercentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (withoutprovisionfor annual incrementsetc.), the courts will usually take only the actual income at the time ofdeath. Adeparturetherefromshouldbe made only in rare and exceptionalcases involving special circumstances."

¶9As regardsthe secondcontentionraisedon behalfof the appellantsthat the age of the mother of the deceased should have formed the basis for the choice of multiplier to be applied to the multiplicandconstitutingthe income of the deceased,I aminclinedto agreewiththis contentionaswell. Themotherof the deceased,who is in actualfactthe legalrepresentativeof the deceased, must be presumedto be younger to his father and therefore it stands to reason that the loss of dependency of the parents must be determinedwith reference to the age of the mother of the deceased, who, in the normal course, was likely to outlive her husband. MAC. AFP. 82/2010 Pase 9 of12

¶10Applying the aforesaid criteria and taking the annual income of the deceased to be ^ 90,000/- (T 7,500/- X 12) and adding 50% thereto towards the future prospects of the deceased, the income of the deceased for the purpose of computation of compensation works out to ^ 90,000/- + ^45,000/- (50% of the annual income) which equals to ^1,35,000/-. Deducting one-half from the aforesaid income towards the personal expenses of the deceased in accordance with the law, the annual loss of dependency of the parents of the deceased comes to ? 67,500/- per annum. The mother of the deceased according to her Election Card Ex. PWl/2 was 45 years of age on the date of the accidentand thus, the proper multiplier in accordance with the age of the mother of the deceasedwould be the multiplierof' 14' in consonancewith the judgmentof the SupremeCourtin Sarla Verma'scase (supra). Thus calculated, the compensation awardable to the appellants on account of loss of dependency works out to ^ 9,45,000/- (?67,500 X 14). Adding to the aforesaid amount ?5,000/- Pase 10 of12 I? towards the loss of the estate of the deceased and ^10,000/-to each of the appellantstowardsthe loss of love and affection of the deceased as awarded by the Claims Tribunal, the total compensation payable to the deceased comes to ? 9,70,000/-. It may be mentionedthat ? 3,000/-had already beenpaidby ESI to the appellantstowardsthe funeralexpenses of the deceased and, therefore, the Tribunal rightly did not award compensationunder this head.

¶11The award amount accordinglystands enhancedfrom the sum of ^ 5,20,000/-to ^ 9,70,000/-with interestas awardedby the learned Tribunal. The apportionmentof the,compensation betweenthe appellantsalongwiththeinterestshallbe asunder: Appellant No.l - Kiran Bhardwaj ? 5,70,000/- along with proportionate interest thereon. AppellantNo.2-VirenderKumarBhardwaj? 4,00,000/- along with proportionate interestthereon.

¶12Forty per cent of the compensation amount shall be releasedto the appellants. The balanceshall be kept in Fixed I Pasell of12 -U) Deposit for a period of five years with the UCO Bank, Delhi High Court Branch in the respectivenames of the appellants. The appellants shall be at liberty to withdraw the aforesaid amount only on the maturityof the Fixed DepositReceiptsin their favour.

¶13The appealstandsallowedin the aboveterms.

¶14The records of the Claims Tribunal be returned to the Tribunal immediately. t REVA KHETRAPAL (JUDGE) June 1, 2011 ak Page 12 of12

* IN THE HIGH COURTOF DELHI AT NEW DELHI I + MAC.APP.82/2010! KIRANBHARDWAJ&ANR. Appellants Through: Mr. V.K.Kalra,Advocate. versus RELIANCEGEN. INSURANCECO. LTD. & ORS Respondents Through: Mr. SameerNandwani, Advocate for the respondent No.l. % Date of Decision : June 1,2011 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whetherreportersof localpapersmay be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whetherjudgmentshouldbe reportedinDigest?