MAC.APP./114/2012 of RAJ KAUR & ORS Vs PANKAJ KUMAR & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAC.APP. 114/2012

Date of decision: 26[th] April, 2012

RAJ KAUR & ORS ..... Appellants

Through:

Mr. Vikas Sharma, Advocate

versus

PANKAJ KUMAR & ORS ..... Respondents Through: Mr. K.L. Nandwani, Advocate for R-3. Through: Mr. K.L. Nandwani, Advocate for R-3.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

1.The Appeal is for enhancement of compensation of `7,63,700/- awarded for the death of Jai Singh, who died in motor accident which occurred on 07.09.2009. awarded for the death of Jai Singh, who died in motor accident which occurred on 07.09.2009.

2.During inquiry before the Motor Accident Claims Tribunal (the Claims Tribunal) it was established that the deceased was working as Security Guard and was getting salary of `6300/- per month. It was proved by examining PW-1 that the deceased was getting pension of `5941/-. Claims Tribunal) it was established that the deceased was working as Security Guard and was getting salary of `6300/- per month. It was proved by examining PW-1 that the deceased was getting pension of `5941/-.

3.The Appellants’ grievance is that although the Claims Tribunal dealt with the question on non-deduction of the family pension dealt with the question on non-deduction of the family pension

from the total income of the deceased, yet it did not add the amount of pension earned by the deceased which was to be taken into consideration to calculate the loss of dependency.

4.On the other hand, it is urged by Mr. K.L.Nandwani, learned counsel for the Insurance Company that the compensation awarded is just and proper. counsel for the Insurance Company that the compensation awarded is just and proper.

5.It is stated that infact there were just three dependents upon the deceased and the Claims Tribunal erred in making the deduction of one-fourth towards personal and living expenses instead of one-third. deceased and the Claims Tribunal erred in making the deduction of one-fourth towards personal and living expenses instead of one-third.

6.It is urged that the compensation of `1,00,000/- awarded towards Loss of Love and Affection is exorbitant and excessive. towards Loss of Love and Affection is exorbitant and excessive.

7.The pension of `5941/- per month received by the deceased was the income in the deceased’s hand. Even if, it is assumed that some family pension might have been paid to the widow, the same was not to be deducted in view of the Full Bench decision in Delhi Transport Corporation v. Meena Chaturvedi & Ors., 122 (2005) DLT 75 (FB). Although, no Cross Objection or Cross Appeal has been filed by the Respondent Insurance Company but the Respondent can support the judgment without filing any Cross-Objections in view of the provision under Order XLV Rule 22 CPC. (Shri Ravinder Kumar Sharma v. The State of Assam & Ors. AIR 1999 SC 3571). the income in the deceased’s hand. Even if, it is assumed that some family pension might have been paid to the widow, the same was not to be deducted in view of the Full Bench decision in Delhi Transport Corporation v. Meena Chaturvedi & Ors., 122 (2005) DLT 75 (FB). Although, no Cross Objection or Cross Appeal has been filed by the Respondent Insurance Company but the Respondent can support the judgment without filing any Cross-Objections in view of the provision under Order XLV Rule 22 CPC. (Shri Ravinder Kumar Sharma v. The State of Assam & Ors. AIR 1999 SC 3571).8.The number of dependents were just three; the Appellants No.4 and 5 being the deceased’s married daughters. Thus, deduction towards personal and living expenses ought to have been one-third instead of one-fourth. (Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121).and 5 being the deceased’s married daughters. Thus, deduction towards personal and living expenses ought to have been one-third instead of one-fourth. (Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121).

9.The loss of dependency thus comes to `10,77,207/- (6300/- + 5941/- x 2/3 x 12 x 11). 5941/- x 2/3 x 12 x 11).

10.The Claims Tribunal awarded sum of `1,00,000/- towards Loss of Love and Affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only `25,000/- (in total to all the claimants) under the head of Loss of Love and Affection. Thus, I would reduce the compensation under this head to `25,000/- only. Loss of Love and Affection. Loss of love and affection can never be measured in terms of money. Thus, uniformity has to be adopted by the Courts while granting non-pecuniary damages. The Supreme Court in Sunil Sharma v. Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance Company Limited (2009) 17 SCC 627 granted only `25,000/- (in total to all the claimants) under the head of Loss of Love and Affection. Thus, I would reduce the compensation under this head to `25,000/- only.

11.On adding notional sum of ` 25,000/- towards Loss of Love and Affection, `10,000/- each towards Loss to Estate, Loss of Consortium and Funeral Expenses, the overall compensation thus comes to `11,32,207/- Affection, `10,000/- each towards Loss to Estate, Loss of Consortium and Funeral Expenses, the overall compensation thus comes to `11,32,207/-

12.The overall compensation is thus enhanced from `7,63,700/- to `11,32,207/- which shall carry interest @ 7.5% per annum from the date of filing of the Petition till the date of deposit. `11,32,207/- which shall carry interest @ 7.5% per annum from the date of filing of the Petition till the date of deposit.

13.The enhanced compensation of `3,68,507/- along with the interest shall enure for the benefit of the Appellant No.1, the deceased’s widow. interest shall enure for the benefit of the Appellant No.1, the deceased’s widow.

14.The Respondent No.3 The United India Insurance Company Limited is directed to deposit the enhanced amount along with the proportionate interest in the name of the First Appellant in UCO Bank, Delhi High Court Branch, New Delhi. Limited is directed to deposit the enhanced amount along with the proportionate interest in the name of the First Appellant in UCO Bank, Delhi High Court Branch, New Delhi.

15.60% of the enhanced amount along with proportionate interest shall be held in fixed deposit for period of five years. Rest of the amount along with proportionate interest shall be released to her forthwith. shall be held in fixed deposit for period of five years. Rest of the amount along with proportionate interest shall be released to her forthwith.

16.The Appeal is allowed in above terms.

APRIL 26, 2012 vk

(G.P. MITTAL) JUDGE