Nirmala Devi & Ors v. United India Insurance Company Ltd & Ors

KAUR, J. ( p Fororders,see file of MAC APPEALNo. 65^/2010. JULY 15, 2011 a MAC APPEAL No.655/2010 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. i : * IN THE HIGH COURT OF DELHI AT NEW DELHI • Date ofJudgment:

15.07.2011 + mac appeal No. 65.-^/::>.0in ANITA DEVI & OTHERS • ™ , Appellants Through: Mr. Hameed S. Shaikh, Advocate. Versus UNITED INDIAASSURANCECOMPANYLTD. &OTHERS ™ , • ' Respondents Through: Mr. K.L. Nandwani, Advocate for respondent No. 1. AND MAC APPFAT. Mo. 654/201» REKEIA YADAV & OTHERS , Appellants Through: Mr. Hameed S. Shaikh, Advocate. Versus UNITED INDIAASSUFIANCECOMPANYLTD. &OTHERS ™ Respondents Through; Mr. K.L. Nandwani, Advocate for respondent No. 1 AND MAC APPEAL No. 6.^57:^010 •V-NIRMALA DEVI & OTHERS . ™ • Appellants Through: Mr. HameedS. Shaikh, Advocate. Versus MAC APPEAL No.653-55/2010 Page 1 of9 • I'T UNITEDINDIAASSURANCECOMPANYLTD.&OTHERS Through: Mr. K.L. NandwantXvoc^S ror respondent No. 1. CORAM: HON'BLEMS.JUSTICEINDERIMEETKAUR ^e allowed to

¶2To be referredto the Reporteror not? Yes

¶3WhethertheJudgmentshouldbe reportedin the Digest? Yes IHDJjRMEETKAItB j (Oral) These are three appeals preferred by the legal heirs of sed Eawan Kumar,JitenderSingh&Dev Karan. Their claim petitionhad been decidedby acommonjudgmentand videAwar-d dated 18.05.2010compensationhad been awarded in favour of ae Claimants.There is no dispute"on the quantumgranted under • the head of non-pecunia,^damages. The only dispute . «th regard to the amounts awarded .under the head of loss' of dependency. All the threedeceasedaftertheirretirementfrom the Indian Navy had been employed with M/s DEC PropertyManagement macAPPEALNo.eslSfiMo''"®'®'

08.11.2008they were travelling' Page 2 of9 '£ n 'B--r I I! together in a Maruti Wagon (R) when their car coUided with a Tata truck which was being driven in a fast and negligent manner; •as a result ofthis colhsionthe motor cyclein front ofthe offending vehicle being driven by one Sunny Singh was hit; Sunny Singh sustained injuries; Pawan Kumar, Jitender Singh & Dev Karan all died on the spot. Four claim petitions had been preferred under Section 166 ofthe MotorVehicleAct (hereinafterreferred to as the 'MV Act'); three by legal heirs/claimants of the deceased and the fourth claim petition had been preferred by the injured Sunny Singh himself. Fact as further emanating from the record are that Pawan Kumar was workingas a Engineer;he was 33 years of age on the date of the accident; Jitender Singh was working as a Sr. Engineer; he was 35 years of age on the date of the accident; Dev Karan was workingas a Supervisor;he was 49 years ofage on the date of the accident;. Because of the untimely death of the aforenoted three persons, future prospects which had not been consideredby the Tribunal have been claimed in these appeals. The claimantsof all the three deceased persons have sought an enhancement of their compensation. Record shows that oral and documentary evidence had been MAC APPEAL No.653-55/2010 Paae3or9 /t) D; ;s -COltig' -i: • I, »• I :• ' led. To decidethis controversyi.e. as to whetherthe legal heirs of the claimantswere entitledto future prospects,testimonyof PW-5 \ is relevant. PW-5 was P.S. Bhandari, Manager of M/s DEC Property Management Pvt. Ltd.; appointment letter qua Dev Karan had been proved as Ex. PW-5/D showing that Dev Karan was appointed with the company at a monthly salary of Rs.16,041/-;the breakupof his salaryhad also been givenshowing that a gross earning of Rs.6,500/-towards basic pay besides dearness allowance; he was entitled to HRA, medical allowance and City Compensatory Allowance. Appointment letter qua Jitender Singh had been proved as Ex. PW-5/B showing that Jitender Singh was appointed with the company at a monthly salary of Rs.36,875/-; the breakup of his salary had also been given showing that a gross earning of Rs.10,500/-towards basic pay besides dearness allowance; he was entitled to HRA, medical allowance and City CompensatoryAllowance.Appointmentletter qua Pawan Kumar had been proved as Ex.PW-5/C showing that Pawan Kumar was appointed with the company at a monthly •f salary of Rs.26,666/-; the breakup of his salary had also been given showing that a gross earning of Rs.8,000/-towards basic ,pay besides dearness allowance; he was entitled to HRA, medical .allowance and City Compensatory Allowance. The Tribunal had MAC APPEALNo.653-55/2010 Page4 r i s not taken the allowancesinto considerationbut the annualsalary after deducting 10% as income tax had been computed as the income.Admittedlyfutureprospectshad not been considered.The pension bemg received by the deceased was also taken into consideration;50% of the same was deducted;keepingin viewthe fact that the remaining50% would have probablybeen spent by the deceasedupon himself;this calculationup to this pointsuffers from no infirmity. However future prospects should have been taken into accountand the Tribunalhas erredin not takingthis into account. In the judgmentreported in AIR 2009 SC 310.4 Saria Verma Others Vs. DelhUjmisportCorporation the Apex Court has held . that the future prospects should not be consideredof deceased who are above 50 years of age. This legislationis a socially benevolent legislati9n engrafted with an intent to allow compensationto be paid to the claimantsof a deceasedas earlyas possible; it muse be a 'just compensation'.Admittedlyin all the three cases i.e. Pawan Kumar,JitenderSingh and Dev Karan they were all aged below 50 years. Pawan Kumar was 33 years of age; Jitender Singh was 35 years of age; Dev Karan was 49 years of age on the date of the accident. i«cAPPEfLto'Supra) had also noted that Page 5 of? , 'rt' [ ' II 'I •i'i ••' • •P" "• — t' • |l I li /3 the future prospectsmay not be consideredif the deceaseddoes not have a permanentjob. Learnedcounselfor the respondenthas also placed rehance upon the judgment of the Apex Court reported in AIR 2006 SC 1255 BijovKum^r Duaar VS Others to support his submission that to establish the claimoffutureprospects,there must be cogentevidence. In this context, the testimony of PW-5 as noted supra is relevant.The appointmentlettersof each of three personsare on record; admittedly all the three deceased persons were mechanical engineers; they were highly qualified; being' speciahzedin a special professionalfield; admittedlyall of them had served;in the Indian Navy prior to their having been appointedin the service of M/s DEC Property ManagementPvt. Ltd. Clause 4 of the appointmentletter is also relevant.It states that their period of probation wih be for a period of one year which may be extendedat the discretionof the employeror this may be dispensedwith even earheror thereaftertill confirmation Their appointmentlettersare dated 25.08.2008.The accidenthad occurredon 08.11.2008i.e. within six months ofthe date of their .appointment. It is nobody's case that the deceased had any adverse report againstthem. Bifurcationof salary of each of the deceasedhad also,beenproducedin the evidenceof PW-5-there macappealNo.653-55/2010 • ^ /V also a promotionpolicy of the company. The promotionpohcy in fact states that a permanent employee is one who is employed against a permanent post and may also include a probationers-salary will be increased annually in April ever year; the salary chart of the deceased placed on record also shows that M/s DEC Property Management Pvt. Ltd. was a large company having several employees on its work hst. From this record, it is apparent that the deceased were all special qualified professional persons'who were working in the field of their specialized capacity; it is also a known fact that these persons after having served in the Indian Navy had joined the service of M/s DEC Property Management Pvt. Ltd. The evidence led before' the Tribunal estabhshes that their jobs were of a permanent nature and they should have also been considered for future prospects; the promotion policy of the company also substantiates enhancement. The rise in the price index and inflationfor which notice has been taken by our courts time and againcannotbe lost sightof; this has illegallybeen ignoredby the Tribunal.There was ample evidence to support this'submission of the appellants. The judgment of. Biiov Kumar Duoar (".Supra1 is r, inapphcable in this factual scenario. The appellants are entitled to future prospects which would MAC APPEALNo.653-55/2010 Page7or9 /S' be double the amount of salary (in the case of Anita Devi and • \ Rekha Yadav and 30% in the case of Ninnala Devi) after deduction of tax. This is in conformity with the ratio of the catena of judgments reported in 2008 ACJ 2182 (Delhi) Kan war Devi Vs. Bansal Roadways, 2007 ACJ 2165 (Delhi) Lekhrai Vs. Suram Singh and 2009 ACJ 1921 (Delhi) National Insurance Co. Ltd. Vs. Renu Devi. The modified Award under the head of loss of dependency will be read as following In the case of Aiiita wife of deceased Pawan Salary of the deceased Adding future prospects Adding family pension Deducting 10% tax liability Deducting l/4th personal expenses Total loss of dependency ?23,500/-ni.750/-?35,250/-^2,057/-?37,307/-?3730/-?33,577/-?8.394/-?25,183/-X12X16 = ? 48,35,136/-

(II) In the case of Rekha Yadav wife of Jitender Salary of the deceased Adding future prospects Adding family pension Deducting 10% tax liability •Deducting l/4th personal expenses Total loss of dependency MAC APPEAL No.653-55/2010 t 32,500/- ?16.250/- ? 48,750/- fl.363/- ?50,113/- ^5.011/- ? 45,102/- t 11.275/- ?33,827/-X12X16 = ?64,94,784/- Page 8 oT9

(iii) In the case ofNirmalaDeviwife of deceasedDev Karan Salary of the deceased Adding future prospects Adding family pension Deducting10% taxliability Deductingl/4th personalexpenses Total loss ofdependency ?14,000/- ^4,200/- ' 18,200/- ^1.715/- ?19,915/- ^1,99]/- ?17.924/- ^13.44.1/- ? 13,443/-X12X13' = ^20,97,108/- The non-pecuniary damages remained unmodified. The interestamountalso callsfor no interference. Appealsare disposedofin the above t JULY 15, 2011 a MAC APPEALNo.653-55/2010

INDERMEETKAUR, J. Pngc 9 of 9 u

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment: 15.07.2011 + MAC APPEAL No. 655/2010 NIRMALA DEVI & OTHERS Appellants Through: Mr. Hameed S. Shaikh, Advocate. Versus UNITED INDIA ASSURANCE COMPANY LTD. & OTHERS Respondents Through: Mr. K.L. Nandwani, Advocate for respondent No. 1. . CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR. T. (Oral) C APPF.AT. No. 6t INDERMEET