RITA SHARMA & ORS. vs ASHOK KUMAR & ANR.
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:11th November, 2024
+ MAC.APP. 132/2021
1. RITA SHARMA,
W/O. LATE SH. RAJESH SHARMA …..Appellant No.1
2. SH. ARJUN SHARMA
W/O. LATE SH. RAJESH SHARMA …..Appellant No.2
3. SH. JATIN SHARMA
W/O. LATE SH. RAJESH SHARMA …..Appellant No.3
Through: Mr. S.N.Parashar, Advocate.
versus
1. ASHOK KUMAR
S/O. SH. S.P.SINGH
…..Respondent No.1
2. UTTAR PRADESH TRANSPORT CORPN.
…..Respondent No.2
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. Appeal under Section 173 of the Motor Vehicle Act, 1988 (M.V. Act hereinafter) filed by the Claimants seeking enhancement of the compensation granted in the sum of Rs. 10,40,000/-on account of demise of Sh. Rajesh Sharma aged 54 years in a road accident,vide Award dated 11.02.2019.
2. The enhancement of compensation is sought on the following grounds:
(i) despite the ITRs having been proved by PW-1, Smt. Rita Sharma wife of the deceased, the income of the deceased has been taken as per the Minimum Wages;
(ii) 50% deduction has been made by observing that these two wo sons aged 25 and 26 years are adults and not dependent upon the deceased;
(iii) no compensation has been granted under the head of Loss of Love and Affection and Loss of Consortium wherein only Rs. 40,000/- has been granted, when in fact there are three legal heirs and each was entitled to Rs. 40,000/- as loss of consortium.
3. Learned counsel on behalf of Respondent No.2/Owner, Uttar Pradesh Transport Corporation has opposed the Appeal on the ground that the learned Tribunal has rightly observed that the Income Tax Returns have not been proved as no person from the Income Tax Authority had been examined. Similarly, the two boys were aged 25 and 26 years and has been rightly held to be not dependent upon the deceased. In so far as the non-pecuniary compensation is concerned, the same may be considered in accordance with law.
4. Submissions Heard.
5. Briefly Stated, on 15.03.2017 deceased/Mr. Rajesh Sharma was commuting from Dilshad Garden, Delhi to Aradhna Chowraha, Ghaziabad on his Motorcycle bearing No. DL-14SB-2828.On reaching near Shanidev Temple, G.T. Road, Ghaziabad, a bus (offending vehicle) bearing No. UP-14DT-7757 being driven by Respondent No. 1/Driver in a rash and negligent manner, struck the deceased from the back side due to which he fell and died on spot.One Sharad Aggarwal took the deceased to GTB Hospital where he was declared Brought Dead. An FIR was registered vide FIR No. 0501/17 u/s 279/427/304-A/338 of the Indian Penal Code, 1860(IPC hereinafter) at PS Sahibabad, Distt. Ghaziabad.
6. Detailed Accident Report was filed before the Ld. Tribunal. The Petition under Section 166 of the M.V. Act was also filed for grant of compensation by the legal heirs of the deceased.
7. The Ld. Tribunal vide impugned Award dated 11.02.2019 granting a sum of Rs. 10,40,000/- along with interest @ 9% per annum in favour of Appellants.
8. Loss of Dependency:-
Income of Deceased:
9. Firstly, The Appellant has sought enhancement on the ground the income of the deceased has been taken as per the Minimum Wages despite the ITRs having been proved by PW-1, Smt. Rita Sharma wife of the deceased.
10. The Ld. Tribunal has observed in the impugned Award that though PW1 Smt. Rita Sharma had proved two ITRs of the deceased for the financial years of 2015-16 and 2016-17, but these ITRs were not proved by summoning witness from the concerned Department. Consequently, the earnings of the Deceased was taken as per Minimum Wages prevalent on the date of accident being Rs. 13,350/-.
11. From the perusal of the ITR Ex. PW1/8 of the deceased, it is apparent that the Total Income after deductions amounts to Rs. 2,70,630 in Assessment year 2015-16 p.a. which is 22,552/- per monthand Rs. 2,69,863/- in Assessment year 2016-17 i.e. 22,488/- per month, which is less than the claimed amount of Rs. 30,000/- per month. Pertinently, the two ITRs for the financial years of 2015-16 and 2016-17 have been proved by PW-1. In light of the record and the evidence, the Income of the deceased is taken as Rs. 22,500 (rounded off) per month i.e. Rs. 2,70,000/- per annum.
Deduction towards Personal and Living Expenses:-
12. The Second Ground on which the enhancement is sought is that 50% deduction has been made on account personal expenses even though the deceased had two sons aged 25 and 26 years by observing that these two boys are adults and not dependent upon the deceased.
13. The Apex Court in National Insurance Company Ltd. vs Birender AIR 2020 SC 434 while examining the issue that whether the major, married and gainfully employed sons of the deceased would be entitled to loss of dependency, opined that the sons were earning a meagre sum of 1 lacs-1.5 lacs per annum and were financially dependent upon the income of their mother, who contributed her entire salary towards household expenses and reduced 50% deduction for personal expenses to 1/3rd on account of deceased having 2 major sons of the deceased.
14. The Kerala High Court in United India Insurance Co Ltd. v. Shalumol MACA No. 1768/2021 has held that even if dependency is a relevant criterion to claim compensation for loss of dependency, it does not mean financial dependency is the ark of the covenant. The Karnataka High Court in Reliance General Insurance Company Ltd. v. Gangappa has relied on Shalumol (Supra) and Birender (Supra) to hold that even major married daughters can be treated as dependents of the deceased.
15. Applying the above principles in the present case, it cannot be overlooked that though the major sons might be having some earnings, they continued to be the responsibility of their deceased father.
16. The support that the father would have provided in the times of need to his sons cannot be measured in money. Thus, while deciding the entitlement of Loss of Dependency one has to keep in mind that dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money. Due consideration is to be given to situations where the sons/claimant still relies on the deceaseds income for any substantial aspect of their life which could include a contribution towards the standard of living or education or even financial support if the claimant is in a lower-paying job.
17. In the present case, the deceased is survived by a wife and two major sons. The Ld. Tribunal erred in holding that the Wife was the only dependent family member as the two sons were major. The number of dependents has to be taken as 3 members.
18. Consequently, the deduction towards personal and living expenses deducted as 50% is reduced to 1/3rd as per Sarla Verma v. DTC (2009) 6 SCC 121 which provides that 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. Therefore, the Awarded amount is accordingly modified as follows:
a. Rs. 22,500/- (monthly income) + Rs. 2,250/- (i.e. 10%) = Rs. 24,750/-
b. 1/3rd Personal Expenses = 1/3 x 24,750 = 8,250/-
c. Therefore, total loss of dependency is calculated as:
(24,750 8,250) x 12 x 11(multiplier) = 21,78,000/-
Non Pecuniary Heads:
19. The third ground agitated by the Appellant is that the Tribunal has not awarded compensation towards Loss of Love and Affection and Loss of filial Consortium. Reliance is placed on Magma Gen. Ins. Co. Ltd. v. Sh. Nanu Ram alias Chuhru Ram & Ors SLP 3192/2018 wherein Rs. 50,000/- each was awarded for Loss of Love and Affection and Rs 40,000 each for Loss of Filial Consortium.
20. The Ld. Tribunal in the Impugned Award has referred toNational Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 and has granted Loss of Estate as Rs. 15,000/-, Funeral Charges as Rs. 15,000 and Loss of Consortium as Rs. 40,000/-.
21. In the present case, since there are three family members of the deceased,as per Pranay Sethi (Supra) Loss of Consortium (including Love and affection) is revised as Rs. 40,000/- each.
Relief:-
22. In view of the above observations, the modified amount of compensation is encapsulated in the Tabular Chart as under:
S.No.
Heads
Compensation granted by the Tribunal
Compensation granted by this Court
1.
Income of Deceased (A)
13,350/-
22,500/- p.m.
2.
Add-Future Prospects (B)
10%
10%
3.
Less-Personal Expenses of Deceased (C)
50%
1/3
4.
Monthly loss of Dependency [(A+B)-C=D]
7,342/-
16,500/-
5.
Annual loss of Dependency (Dx12)
88,110/-
1,98,000/-
6.
Multiplier (E)
11
11
7.
Total loss of Dependency
9,69,210/-
21,78,000/-
8.
Medical Expenses
Nil
Nil
9.
Compensation for loss of Consortium (H)
40,000/-
1,20,000/-(40,000×3)
10.
Compensation for loss of Estate (I)
15,000/-
15,000/-
11.
Compensation towards funeral expenses (J)
15,000/-
15,000/-
12.
Total Compensation (F+G+H+I+J=K)
10,39,210/-
23,28,000/-
13.
Rate of Interest Awarded
9%
9%
23. In view of the above the total amount of Compensation awarded is thus, modified to Rs. 23,28,000/-along with interest @ 9% per annum, as per the terms of the Award dated 11.02.2019 passed by the Ld. Tribunal. The enhanced compensation be deposited by the Insurance Company, before the Tribunal within four weeks, which shall be disbursed, in terms of the Award.
24. The Appeal stands disposed of accordingly.
(NEENA BANSAL KRISHNA)
JUDGE
NOVEMBER 11, 2024/rk