Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 18 January, 2012
rd
Pronounced on: 23 January, 2012
+ MAC APP. 179/2010
NEELAM PRASHAR & ORS. ..... Appellants
Through: Mr. S. N. Parashar, Adv.
versus
MINTOO THAKUR & ORS. ..... Respondents
Through: Mr. Joy Basu, Adv. for R-3.
+ MAC APP. 313/2010
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Joy Basu, Adv.
versus
NEELAM PRASHAR & ORS. ..... Respondents
Through: Mr. S. N. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. By these two Cross Appeals, the parties impugn the judgment
dated 19.01.2010 whereby a compensation of ` 1,03,68,744/-
was awarded for the death of Atul Prashar aged 37 years, who
died in a motor accident, which took place on 18.01.2008. The
MAC APP No.179 & 313/2010 Page 1 of 8
MAC. APP. No.179/2010 has been filed by the legal
representatives of the deceased i.e. Neelam Prashar and others
(hereinafter referred to as the “Claimants”) whereas MAC.
APP. No.313/2010 has been preferred by the National Insurance
Co. Ltd. (hereinafter referred to as “insurer”) disputing the
negligence on the part of the driver of Maruti Esteem bearing
Registration No.DL-2CAC-5813 and for reduction of the
amount of compensation awarded by the Motor Accident
Claims Tribunal (the Tribunal).
NEGLIGENCE: -
2. It is urged by the learned counsel for the Insurer that in order to
prove negligence the Claimants examined PW-2 Dushyant
Vasudev and PW-4 Ashish Aggarwal. The accident took place
at about 6:30 AM. Both PW-2 & PW-4 were working in
separate offices (though in the same vicinity) & their offices
would start at 9/ 9:30 AM. Thus, their presence at the time of
the accident was highly improbable. If the testimony of these
two witnesses is taken off the record there is nothing to
establish the negligence on the part of the driver of Maruti
Esteem Car No.DL-2CAC-5813. It is well settled that in a
claim petition negligence is required to be proved only on the
test of preponderance of probabilities. The FIR in this case was
registered on the basis of the statement of PW-2. The offending
vehicle was seized from the spot. The driver of the Esteem Car
No.DL-2CAC-5813 was not produced by the Insurer to rebut
MAC APP No.179 & 313/2010 Page 2 of 8
the testimony of PW-2 and PW-4. PW-2 gave an explanation
that he was called early in the office because some guests were
scheduled to come. In the absence of examination of the driver
to rebut PW-2 and PW-4‟s testimonies their presence at the spot
at the time of accident cannot be doubted merely on the
assumption that they could not have proceeded for the office
early and that too in the same vehicle. In my view, on the test
of preponderance of probabilities, PW-2 and PW-4‟s
testimonies that, the accident was caused on account of rash and
negligent driving by the driver of Car No.DL-2CAC-5813 has
to be accepted. I hold that the finding of fact reached by the
Tribunal on this count cannot be faulted.
QUANTUM OF COMPENSATION: -
3. For the purpose of loss of dependency the Tribunal took the
deceased‟s income to be ` 78,477/- after deducting the
conveyance allowance of ` 800/- per month and medical pay of
` 1,250/- per month. It is urged by the learned counsel for the
Claimants that the medical pay was for the benefit of the
deceased and his family members and should have been taken
into consideration as part of the salary. It is submitted that the
multiplier of „13‟ selected by the Tribunal as against „15‟
suggested in Sarla Verma v. DTC , (2009) 6 SCC 121 is on the
lower side. The compensation towards loss of love and
`
affection of 10,000/- is also very low and needs enhancement.
MAC APP No.179 & 313/2010 Page 3 of 8
4. Per contra learned counsel for the Insurer submits that a
deduction of ` 4,484/- on account of payment towards provident
fund should have been made by the Tribunal as the said money
did not come in deceased‟s hand to be spent on the family.
5. It is contended that in high income bracket when the
multiplicand is high a lower multiplier can be selected to award
just compensation. Reliance is placed on United India
Insurance Co. Ltd. etc. v. Patricia Jean Mahajan & Ors. ,
(2002) 6 SCC 281.
6. It is well settled that for determination of loss of dependency,
the amount paid to the deceased by his employer by way of
perks should be included in the monthly income [ National
Insurance Co. Ltd. v. Indira Srivastava , I (2008) ACC 162
(SC); National Insurance Co. Ltd. v. Saroj & Ors. , (2009) 13
SCC 508]. The deduction of ` 4,484/- as shown in the salary
slip Ex. PW-1/2 was for the future benefit of the family as this
amount along with interest was payable to the deceased.
Similarly, medical pay of ` 1,250/- was also given for taking
case of the medical needs of the deceased and his family
members. The Tribunal fell into error in ignoring this amount
of ` 1,250/-, of course, deduction towards income tax is liable to
be made as the net income of the deceased is the starting point
for calculation of loss of dependency.
MAC APP No.179 & 313/2010 Page 4 of 8
7. The deceased was working as a Senior Project Leader with M/s.
Saksoft Ltd. He was a young person of 37 years and being in
permanent employment had good future prospects. The
Tribunal did not commit any error in adding 50% of the
deceased‟s income towards his future prospects.
8. As far as selection of multiplier is concerned at the age of 37
years the appropriate multiplier would be „15‟ whereas the
Tribunal took the multiplier of „13‟. The learned counsel for
the Insurer tried to justify the lower multiplier on the ground
that in case of higher multiplicand a lower multiplier can be
selected. In the case of Patricia Jeam Mahajan (supra) the
learned Single Judge applied the multiplier of „10‟, which was
increased to „13‟ on the basis of the judgment in Kerala State
Road Transport Corporation v. Susamma Thomas , (1994) 2
SCC 176 and UP State Road Transport Corporation v. Trilok
Chandra & Ors. , (1996) 4 SCC 362 decided by a Division
Bench of this Court. The Supreme Court reduced the multiplier
to „10‟. In para 19 and 20 of the report it was observed as
under: -
“ 19. In the present case the deceased was 39
years of age. His income was ` 1032 per month.
Of course, the future prospects of advancement in
life and career should also be sounded in terms of
money to augment the multiplicand. While the
chance of the multiplier is determined by two
factors, namely, the rate of interest appropriate to
a stable economy and the age of the deceased or of
MAC APP No.179 & 313/2010 Page 5 of 8
the claimant whichever is higher, the
ascertainment of the multiplicand is a more
difficult exercise. Indeed, many factors have to be
put into the scales to evaluate the contingencies of
the future. All contingencies of the future need not
necessarily be baneful. The deceased person in
this case had a more or less stable job. It will not
be inappropriate to take a reasonably liberal view
of the prospects of the future and in estimating the
gross income it will be unreasonable to estimate
the loss of dependency on the present actual
income of ` 1032 per month. We think, having
regard to the prospects of advancement in the
future career, respecting which there is evidence
on record, we will not be in error in making a
`
higher estimate of monthly income at 2000 as the
gross income. From this has to be deducted his
personal living expenses, the quantum of which
again depends on various factors such as whether
the style of living was Spartan or bohemian. In the
absence of evidence it is not unusual to deduct
one-third of the gross income towards the personal
living expenses and treat the balance as the
amount likely to have been spent on the members
of the family and the dependents. This loss of
dependency should capitalize with the appropriate
multiplier. In the present case we can take about `
1400 per month or ` 17,000 per year as the loss of
dependency and if capitalized on a multiplier of
12, which is appropriate to the age of the
deceased, the compensation would work out to ( `
17,000 x 12 = ` 2,03,000) to which is added the
usual award for loss of consortium and loss of the
`
estate each in the conventional sum of 15,000.
`
20. We think, in all, a sum of 2,25,000 should
be a fair, just and reasonable award in the
circumstances of this case. The claim made for
`
loss of future earnings of 50,000 on the prospects
MAC APP No.179 & 313/2010 Page 6 of 8
of future employment in USA was rightly negative
by the Tribunal. The award under this head is
clearly unjustified in the facts of the case. ”
9. It is important to note that in Patricia Jean Mahajan (supra) the
dependents were parents aged 69/ 73 years and two daughters
aged 17 and 19 years. The parents were residents of India
whereas the daughters were residents of USA. The
compensation on the multiplier of „10‟ came to be `
10,38,00,000/-. In the case in hand the deceased left behind a
minor son apart from a widow and the aged parents. The
`
compensation awarded in this case was just above
1,00,00,000/-, which cannot be said to be astronomical. In the
circumstances, there is no justification to apply a lower
multiplier than the one suggested in Sarla Verma (supra).
10. If the deceased‟s father is not considered as a dependant
because there is no evidence on this aspect; the loss of
dependency comes to ` 80,527 – 800 + 50% x 12 – 3,79,524/-
rd
(income tax) – 1/3 x 15 = ` 1,05,55,620/-.
11. Thus, it may be noticed that there is marginal difference in the
amount of compensation of ` 1,03,38,744/- awarded by the
Tribunal and the compensation of ` 1,05,55,620/-, which comes
on the application of multiplier of „15‟. The compensation
awarded by the Tribunal, therefore, is just and reasonable and
does not call for any interference.
MAC APP No.179 & 313/2010 Page 7 of 8
12. Both the appeals are thus devoid of any merit, the same are
accordingly dismissed. No costs.
(G.P. MITTAL)
JUDGE
JANUARY 23, 2012
hs
MAC APP No.179 & 313/2010 Page 8 of 8
th
Reserved on: 18 January, 2012
rd
Pronounced on: 23 January, 2012
+ MAC APP. 179/2010
NEELAM PRASHAR & ORS. ..... Appellants
Through: Mr. S. N. Parashar, Adv.
versus
MINTOO THAKUR & ORS. ..... Respondents
Through: Mr. Joy Basu, Adv. for R-3.
+ MAC APP. 313/2010
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Joy Basu, Adv.
versus
NEELAM PRASHAR & ORS. ..... Respondents
Through: Mr. S. N. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. By these two Cross Appeals, the parties impugn the judgment
dated 19.01.2010 whereby a compensation of ` 1,03,68,744/-
was awarded for the death of Atul Prashar aged 37 years, who
died in a motor accident, which took place on 18.01.2008. The
MAC APP No.179 & 313/2010 Page 1 of 8
MAC. APP. No.179/2010 has been filed by the legal
representatives of the deceased i.e. Neelam Prashar and others
(hereinafter referred to as the “Claimants”) whereas MAC.
APP. No.313/2010 has been preferred by the National Insurance
Co. Ltd. (hereinafter referred to as “insurer”) disputing the
negligence on the part of the driver of Maruti Esteem bearing
Registration No.DL-2CAC-5813 and for reduction of the
amount of compensation awarded by the Motor Accident
Claims Tribunal (the Tribunal).
NEGLIGENCE: -
2. It is urged by the learned counsel for the Insurer that in order to
prove negligence the Claimants examined PW-2 Dushyant
Vasudev and PW-4 Ashish Aggarwal. The accident took place
at about 6:30 AM. Both PW-2 & PW-4 were working in
separate offices (though in the same vicinity) & their offices
would start at 9/ 9:30 AM. Thus, their presence at the time of
the accident was highly improbable. If the testimony of these
two witnesses is taken off the record there is nothing to
establish the negligence on the part of the driver of Maruti
Esteem Car No.DL-2CAC-5813. It is well settled that in a
claim petition negligence is required to be proved only on the
test of preponderance of probabilities. The FIR in this case was
registered on the basis of the statement of PW-2. The offending
vehicle was seized from the spot. The driver of the Esteem Car
No.DL-2CAC-5813 was not produced by the Insurer to rebut
MAC APP No.179 & 313/2010 Page 2 of 8
the testimony of PW-2 and PW-4. PW-2 gave an explanation
that he was called early in the office because some guests were
scheduled to come. In the absence of examination of the driver
to rebut PW-2 and PW-4‟s testimonies their presence at the spot
at the time of accident cannot be doubted merely on the
assumption that they could not have proceeded for the office
early and that too in the same vehicle. In my view, on the test
of preponderance of probabilities, PW-2 and PW-4‟s
testimonies that, the accident was caused on account of rash and
negligent driving by the driver of Car No.DL-2CAC-5813 has
to be accepted. I hold that the finding of fact reached by the
Tribunal on this count cannot be faulted.
QUANTUM OF COMPENSATION: -
3. For the purpose of loss of dependency the Tribunal took the
deceased‟s income to be ` 78,477/- after deducting the
conveyance allowance of ` 800/- per month and medical pay of
` 1,250/- per month. It is urged by the learned counsel for the
Claimants that the medical pay was for the benefit of the
deceased and his family members and should have been taken
into consideration as part of the salary. It is submitted that the
multiplier of „13‟ selected by the Tribunal as against „15‟
suggested in Sarla Verma v. DTC , (2009) 6 SCC 121 is on the
lower side. The compensation towards loss of love and
`
affection of 10,000/- is also very low and needs enhancement.
MAC APP No.179 & 313/2010 Page 3 of 8
4. Per contra learned counsel for the Insurer submits that a
deduction of ` 4,484/- on account of payment towards provident
fund should have been made by the Tribunal as the said money
did not come in deceased‟s hand to be spent on the family.
5. It is contended that in high income bracket when the
multiplicand is high a lower multiplier can be selected to award
just compensation. Reliance is placed on United India
Insurance Co. Ltd. etc. v. Patricia Jean Mahajan & Ors. ,
(2002) 6 SCC 281.
6. It is well settled that for determination of loss of dependency,
the amount paid to the deceased by his employer by way of
perks should be included in the monthly income [ National
Insurance Co. Ltd. v. Indira Srivastava , I (2008) ACC 162
(SC); National Insurance Co. Ltd. v. Saroj & Ors. , (2009) 13
SCC 508]. The deduction of ` 4,484/- as shown in the salary
slip Ex. PW-1/2 was for the future benefit of the family as this
amount along with interest was payable to the deceased.
Similarly, medical pay of ` 1,250/- was also given for taking
case of the medical needs of the deceased and his family
members. The Tribunal fell into error in ignoring this amount
of ` 1,250/-, of course, deduction towards income tax is liable to
be made as the net income of the deceased is the starting point
for calculation of loss of dependency.
MAC APP No.179 & 313/2010 Page 4 of 8
7. The deceased was working as a Senior Project Leader with M/s.
Saksoft Ltd. He was a young person of 37 years and being in
permanent employment had good future prospects. The
Tribunal did not commit any error in adding 50% of the
deceased‟s income towards his future prospects.
8. As far as selection of multiplier is concerned at the age of 37
years the appropriate multiplier would be „15‟ whereas the
Tribunal took the multiplier of „13‟. The learned counsel for
the Insurer tried to justify the lower multiplier on the ground
that in case of higher multiplicand a lower multiplier can be
selected. In the case of Patricia Jeam Mahajan (supra) the
learned Single Judge applied the multiplier of „10‟, which was
increased to „13‟ on the basis of the judgment in Kerala State
Road Transport Corporation v. Susamma Thomas , (1994) 2
SCC 176 and UP State Road Transport Corporation v. Trilok
Chandra & Ors. , (1996) 4 SCC 362 decided by a Division
Bench of this Court. The Supreme Court reduced the multiplier
to „10‟. In para 19 and 20 of the report it was observed as
under: -
“ 19. In the present case the deceased was 39
years of age. His income was ` 1032 per month.
Of course, the future prospects of advancement in
life and career should also be sounded in terms of
money to augment the multiplicand. While the
chance of the multiplier is determined by two
factors, namely, the rate of interest appropriate to
a stable economy and the age of the deceased or of
MAC APP No.179 & 313/2010 Page 5 of 8
the claimant whichever is higher, the
ascertainment of the multiplicand is a more
difficult exercise. Indeed, many factors have to be
put into the scales to evaluate the contingencies of
the future. All contingencies of the future need not
necessarily be baneful. The deceased person in
this case had a more or less stable job. It will not
be inappropriate to take a reasonably liberal view
of the prospects of the future and in estimating the
gross income it will be unreasonable to estimate
the loss of dependency on the present actual
income of ` 1032 per month. We think, having
regard to the prospects of advancement in the
future career, respecting which there is evidence
on record, we will not be in error in making a
`
higher estimate of monthly income at 2000 as the
gross income. From this has to be deducted his
personal living expenses, the quantum of which
again depends on various factors such as whether
the style of living was Spartan or bohemian. In the
absence of evidence it is not unusual to deduct
one-third of the gross income towards the personal
living expenses and treat the balance as the
amount likely to have been spent on the members
of the family and the dependents. This loss of
dependency should capitalize with the appropriate
multiplier. In the present case we can take about `
1400 per month or ` 17,000 per year as the loss of
dependency and if capitalized on a multiplier of
12, which is appropriate to the age of the
deceased, the compensation would work out to ( `
17,000 x 12 = ` 2,03,000) to which is added the
usual award for loss of consortium and loss of the
`
estate each in the conventional sum of 15,000.
`
20. We think, in all, a sum of 2,25,000 should
be a fair, just and reasonable award in the
circumstances of this case. The claim made for
`
loss of future earnings of 50,000 on the prospects
MAC APP No.179 & 313/2010 Page 6 of 8
of future employment in USA was rightly negative
by the Tribunal. The award under this head is
clearly unjustified in the facts of the case. ”
9. It is important to note that in Patricia Jean Mahajan (supra) the
dependents were parents aged 69/ 73 years and two daughters
aged 17 and 19 years. The parents were residents of India
whereas the daughters were residents of USA. The
compensation on the multiplier of „10‟ came to be `
10,38,00,000/-. In the case in hand the deceased left behind a
minor son apart from a widow and the aged parents. The
`
compensation awarded in this case was just above
1,00,00,000/-, which cannot be said to be astronomical. In the
circumstances, there is no justification to apply a lower
multiplier than the one suggested in Sarla Verma (supra).
10. If the deceased‟s father is not considered as a dependant
because there is no evidence on this aspect; the loss of
dependency comes to ` 80,527 – 800 + 50% x 12 – 3,79,524/-
rd
(income tax) – 1/3 x 15 = ` 1,05,55,620/-.
11. Thus, it may be noticed that there is marginal difference in the
amount of compensation of ` 1,03,38,744/- awarded by the
Tribunal and the compensation of ` 1,05,55,620/-, which comes
on the application of multiplier of „15‟. The compensation
awarded by the Tribunal, therefore, is just and reasonable and
does not call for any interference.
MAC APP No.179 & 313/2010 Page 7 of 8
12. Both the appeals are thus devoid of any merit, the same are
accordingly dismissed. No costs.
(G.P. MITTAL)
JUDGE
JANUARY 23, 2012
hs
MAC APP No.179 & 313/2010 Page 8 of 8