REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 702/2002 and CM No.12941/2006
DEVKI NANDAN MALHOTRA AND ORS. ..... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
RAJENDRA SINGH AND ORS. ..... Respondents
Through: None
+ FAO 704/2002
KAPIL KARTIK AND ANR. ..... Appellants
Through: Mr. Navneet Goyal, Advocate
versus
RAJENDRA SINGH AND ORS. ..... Respondents
Through: None
% Date of Decision : October 03, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
FAO Nos.702/2002 and 704/2002 Page 1 of 15
: REVA KHETRAPAL, J.
1. By this common order, it is proposed to decide both the
aforesaid appeals which have arisen from the same motor accident
and the claims in respect of which have been decided by the Motor
Accidents Claims Tribunal by its common judgment and award dated
07.09.2002.
2. Concisely, the facts of the case are that on the night of
13.01.1997, at around 9:50 p.m., one Harish Chander Malhotra and
his wife Smt. Kanta Malhotra were going on a two-wheeler scooter
bearing No.DL-58B-2579 from Jitar Nagar to Noida, when they met
with a motor vehicular accident, caused by the rash and negligent
driving of the truck bearing No.AP-094-6898, in which both Harish
Chander Malhotra and his wife received fatal injuries and were
declared dead when taken to the hospital. Separate Claim Petitions
were filed by the legal representatives of both the deceased, one being
Suit No.703/97 (New No.597/01), filed by the legal representatives of
deceased Harish Chander Malhotra, namely, Devki Nandan Malhotra
(father), Janak Rani Malhotra (mother), Kapil Kartik (son) and Ritu
FAO Nos.702/2002 and 704/2002 Page 2 of 15
Moona (daughter). The other bearing Suit No.704/1997 (New
No.598/01), was filed by the legal representatives of the deceased
Smt. Kanta Malhotra (wife of the aforesaid Shri Harish Chander
Malhotra), namely, her children Kapil Kartik Malhotra and Ritu
Moona under Sections 166 and 163-A of the Motor Vehicles Act,
1988. In view of the fact that the claimants pressed for interim
compensation under Section 140 of the Motor Vehicles Act and a
sum of ` 50,000/- each was awarded in both the petitions, the learned
Claims Tribunal treated both the petitions as instituted under Section
166 of the Act.
3. After conducting an inquiry and recording evidence, on the
basis of the testimony of PW4 Rajender Kumar Malhotra, the brother
of the deceased, the Claims Tribunal arrived at the finding that Harish
Chander Malhotra and his wife Kanta Malhotra died in the accident
which occurred solely due to the rash and negligent driving of the
offending truck by the respondent No.1, and accordingly the
respondent No.1-driver, the respondent No.2-owner and the
respondent No.3-Insurance Company were held liable to pay
FAO Nos.702/2002 and 704/2002 Page 3 of 15
compensation to the aforesaid legal representatives of both the
deceased persons. The Tribunal then assessed the total compensation
payable to the legal representatives of Harish Chander Malhotra to be
in the sum of ` 13,56,000/-, and as regards the death of Smt. Kanta
Malhotra, the compensation payable to her legal representatives was
assessed to be in the sum of ` 8,05,380/-. Interest at the rate of 9%
per annum from the date of the filing of the petition, i.e., 21.03.1997
till the realisation of the award amount was also awarded in both the
claim petitions. Aggrieved by the quantum of compensation awarded
by the learned Tribunal, the present appeals have been preferred by
the legal representatives of both the deceased persons seeking
enhancement of the same. It is proposed to deal with the appeals one
by one.
FAO 702/2002 and CM No.12941/2006 titled as “Devki Nandan
Malhotra and Ors. vs. Rajendra Singh and Ors.”
4. The sole contention of Mr. Navneet Goyal, the learned counsel
for the appellants, being the legal representatives of the deceased –
Harish Chander Malhotra, is that the learned Tribunal did not assess
FAO Nos.702/2002 and 704/2002 Page 4 of 15
the award amount in accordance with the well settled principles of
law enunciated by the Supreme Court from time to time. Relying
upon the judgment of the Supreme Court rendered in the case of Smt.
Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.
(2009) 6 SCC 121, Mr. Goyal contended that the learned Tribunal
erred in not taking into account the prospects of increase in the
income of the deceased, which should have been assessed to be not
less than 30% of his actual income on the date of the accident. He
further contended that the deceased, having left behind him four
dependent family members including his parents and two children,
the deduction made by the learned Tribunal for his personal expenses
and maintenance should have been one-fourth (1/4th) of his average
annual income instead of one-half (1/2).
5. I am inclined to agree with both the aforesaid contentions of
the learned counsel for the appellants for the reason that it is not in
dispute that the deceased was 48 years of age on the date of his
accident and was an officer in the Karol Bagh branch of the
Allahabad Bank. PW 2 Shri K.P. Tanwar, an official from the said
FAO Nos.702/2002 and 704/2002 Page 5 of 15
Bank, proved on record the salary details of the deceased as
Ex.PW2/A. As per the said document, the date of birth of the
deceased was 20.01.1949 and his date of retirement was 31.01.2009.
A perusal of Exhibit PW2/A further shows that the total emoluments
of the deceased for the month of December, 1996, that is, for the
month prior to the accident, were ` 15,270.54 per month. These
salary details further mention that had he survived the accident, basic
salary of the deceased in the years 1998 to 2001 would have increased
to ` 9,950/-, resulting in enhancement of his total emoluments to
` 19,000/- (approximately). It is also mentioned therein that had the
deceased been able to continue in service, his next promotion to
Scale-IV as Chief Manager/Regional Manager would have become
due in the year 2001 and his total salary on promotion would have
become ` 22,000/- per month (approximately); and in the year 2007,
he would have been promoted to Scale-V as Assistant General
Manager with a total salary of ` 25,000/- per month (approximately).
6. The learned Tribunal though rightly came to the conclusion
that the salary of the deceased was bound to increase in future to
FAO Nos.702/2002 and 704/2002 Page 6 of 15
atleast ` 19,000/- as mentioned in Exhibit PW2/A, the manner of
quantification of future prospects by the learned Tribunal, however,
cannot be upheld in the light of the judgment of the Supreme Court in
the case of Sarla Verma (supra). The Supreme Court in the said case
has laid down certain guidelines to be uniformly followed by all
Courts and Tribunals in the assessment of the income of deceased
persons and the award of compensation to their legal representatives
and dependents. The aforesaid guidelines have been laid down with a
view to ensure uniformity and so that different Courts and Tribunals
do not adopt different yardsticks while computing the loss of
dependency of the legal representatives of those who meet with fatal
accidents. On the aspect of taking into account the increase in the
earnings of a deceased person while computing the compensation
payable to his legal representatives, the following apposite
observations have been made by the Supreme Court: (SCC, page 134)
“In Susamma Thomas, this Court increased
the income by nearly 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 in favour of adopting as a
FAO Nos.702/2002 and 704/2002 Page 7 of 15
rule of thumb, 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 `actual salary less tax’]. The
addition should be only 30% if the age of the
deceased was 40 to 50 years. There should be
no addition, where the age of deceased is more
than 50 years.”
7. With regard to the deduction to be made from the salary
income of the deceased towards his personal expenses and
maintenance, the Supreme Court in Sarla Verma’s case (supra) has
crystallized the law as under:-
“30. Though in some cases the deduction to be
made towards personal and living expenses is
calculated on the basis of units indicated in
Trilok Chandra, the general practice is to
apply standardized deductions. Having
considered several subsequent decisions of this
Court, we are of the view that where the
deceased was married, the deduction towards
personal and living expenses of the deceased,
should be one-third (1/3rd) where the number of
dependent family members is 2 to 3, one-fourth
(1/4th) where the number of dependant family
members is 4 to 6, and one-fifth (1/5th) where
the number of dependant family members
exceed six.”
FAO Nos.702/2002 and 704/2002 Page 8 of 15
8. From the aforesaid, the necessary corollary is that the
compensation awarded in the present case needs to be re-computed so
as to bring it in line with the law enunciated by the Supreme Court
and it is upon this exercise that I now embark. Taking the salary of
the deceased to be ` 15,270.54 on the date of his demise as
mentioned in the salary certificate Ex.PW2/A, and adding 30% to his
said salary income on account of his future prospects, the average
monthly income of the deceased comes to ` 19,851/- per month
[` 15,270/- (rounded off) plus ` 4,581/- (30% increase)]. Keeping in
view the fact that the deceased on the date of his demise had left
behind him four legal representatives, a deduction of one-fourth
towards the personal and living expenses of the deceased would be
warranted and thus the average monthly loss of dependency of the
appellants comes to ` 14,888/- per month, or say ` 1,78,656/- per
annum. It is not in dispute that the deceased was 48 years of age on
the date of the accident and thus he fell in the age group of persons
between 46 to 50 years, for which age group in the case of Sarla
Verma (supra) the multiplier of 13 has been approved of and
FAO Nos.702/2002 and 704/2002 Page 9 of 15
tabulated in paragraph 40 of the decision. Thus calculated, the total
loss of dependency of the appellants comes to ` 23,22,528/-. The
learned Tribunal has already awarded a sum of ` 4,000/- for the
funeral expenses of the deceased and a sum of ` 25,000/- for loss of
love and affection of the deceased, to which a sum of ` 10,000/- is
added towards loss of estate of the deceased. Thus, the total amount
of compensation payable to the appellants comes to ` 23,61,528/-
which is rounded off to ` 23,62,000/- (Rupees twenty three lakh sixty
two thousand only).
FAO 704/2002 titled as “Kapil Kartik and Anr. vs. Rajendra Singh
and Ors.”
9. The legal representatives of the deceased Smt. Kanta Malhotra
have filed the present appeal seeking enhancement of the quantum of
compensation awarded to them for the death of their mother.
10. A perusal of the award shows that the learned Tribunal relied
upon the testimony of PW1 Shri Brijesh Kumar, Office Attendant,
Department of Social Work, University of Delhi, who proved on
record the salary details of the deceased as Ex.PW1/B and also
proved on record a statement (Ex.PW1/C) indicating the salary of the
FAO Nos.702/2002 and 704/2002 Page 10 of 15
deceased due to the implementation of the report of the Fifth Pay
Commission. As per the salary certificate Ex.PW1/B, the annual
salary of the deceased in the year 1996 was ` 77,904/-. The learned
Tribunal observed that a perusal of document Ex.PW1/C would
indicate that the employer of the deceased had certified that due to the
implementation of the Fifth Pay Commission, the annual salary of the
deceased for the period 1.1.1997 to 31.12.1997, but for her death,
would have been ` 94,603/- inclusive of transport allowance of
` 500/- per month. Thus, after the implementation of the report of the
Fifth Pay Commission, the annual salary of the deceased excluding
transport allowance would have been ` 94,103/-. The Tribunal then
observed that document Ex.PW6/C was a letter written by the Delhi
University to the son of the deceased, indicating that at the time of her
death, the basic salary of the deceased was ` 5,850/- per month and
after annual increments it would have gone up to ` 7,950/- per month
plus allowances and, therefore, keeping in view the fact that the
deceased was to continue in service till 31.03.2006, it would not be
out of place to take it that by the end of her career, her annual salary
FAO Nos.702/2002 and 704/2002 Page 11 of 15
would have at least doubled. Thus, the learned Tribunal took the
average of the annual earning capacity of the deceased at the time of
the death and doubled the same, which amounted to ` 1,41,160/-.
Deducting one-half (1/2) therefrom for the personal expenses of the
deceased and applying the multiplier of 11 to the resultant
multiplicand, the learned Tribunal assessed that the appellants were
entitled to compensation of ` 7,76,380/- on account of loss of
dependency, ` 4,000/- on account of funeral expenses and ` 25,000/-
on account of non-pecuniary damages suffered by them, in all,
` 8,05,380/- with interest thereon at the rate of 9% per annum.
11. A two-fold contention was raised by Mr. Goyal, the learned
counsel for the appellants. The first limb of his argument was that a
deduction of not more than one-third (1/3rd) should have been made
from the average annual income of the deceased for the purpose of
computing the loss of dependency of her legal representatives.
Instead, the Tribunal had deducted one-half (1/2) of the income of the
deceased towards her personal expenses and maintenance. The
second limb of Mr. Goyal’s argument is that the deceased was less
FAO Nos.702/2002 and 704/2002 Page 12 of 15
than 51 years of age, that is 50 years and 9 months, and as such, the
learned Tribunal should have applied the multiplier of 13 to the
multiplicand constituting the average annual loss of dependency of
her legal representatives, instead of the multiplier of 11.
12. In view of the fact that the average annual income of the
deceased has not been challenged, it is assumed that the average
annual income of the deceased after taking into account her future
prospects would have been in the sum of ` 1,41,160/- as assessed by
the learned Tribunal. A deduction of one-half from the said income
towards the personal expenses of the deceased, in my view, is on the
higher side and a deduction of not more than one-third (1/3rd) of the
income of the deceased is warranted keeping in view the fact that the
deceased was a married woman and her husband was an earning
hand. Deducting one-third (1/3rd) from the income of the deceased
towards her personal expenses, the average annual income of the
deceased comes to ` 94,107 /-. I am also inclined to agree with the
submission of Mr. Goyal that the appropriate multiplier in the instant
case would be the multiplier of 13. I say so for the reason that the
FAO Nos.702/2002 and 704/2002 Page 13 of 15
Supreme Court in the case of Sarla Verma (supra) has approved of
the said multiplier for the age group of persons between 46 to 50
years while the multiplier of 11 has been approved for the age group
of persons between 51 years to 55 years of age. Thus calucalted, the
loss of dependency of her legal representatives comes to
` 12,23,391/-. After adding the sum of ` 4,000/- towards funeral
expenses and ` 25,000/- by way of non-pecuniary damages awarded
by the learned Tribunal, the total amount of compensation payable to
the appellants comes to ` 12,52,391/-, which may be rounded off to
` 12,52,500 /- (Rupees Twelve Lac Fifty Two Thousand and Five
Hundred Only).
13. Resultantly, the compensation in the case of the death of Shri
Harish Chander Malhotra is enhanced by a sum of ` 10,05,500/- [that
is ` 23,62,000 minus ` 13,56,500/-], and the compensation in the
case of Smt. Kanta Malhotra is enhanced by a sum of ` 4,47,120/-
[that is ` 12,52,500 minus ` 8,05,380/-]. Interest on the enhanced
amount of compensation in both the cases shall be paid at the uniform
rate of 7.5% per annum from the date of the institution of the petition
FAO Nos.702/2002 and 704/2002 Page 14 of 15
till the date of realisation. The respondent No.3-Insurance Company
shall deposit the enhanced amount of compensation in both the
appeals and the compensation awarded by the learned Tribunal, if not
already deposited alongwith the interest thereon, with the Registrar
General of this Court, within 30 days of the date of the passing of this
order, which shall be released to the appellants in the same proportion
as awarded by the learned Tribunal.
14. Both the appeals are allowed to the aforesaid extent. CM
No.12941/2006 also stands disposed of accordingly. Parties shall
bear their own costs.
15. Records of the Claims Tribunal be sent back to the concerned
Tribunal forthwith.
REVA KHETRAPAL
(JUDGE)
October 03, 2011
km
FAO Nos.702/2002 and 704/2002 Page 15 of 15
