HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T G. P. MITTAL, J. (ORAL)
1. These eight Appeals arise out of a common judgment dated 30.11.2007 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby nineteen Claim Petitions arising out of a motor vehicle accident which took place on 20.08.1999 were decided. The Respondent Oriental Insurance Company Ltd. preferred nineteen separate Appeals challenging its liability to pay the compensation on the ground that Tagore International School, owner of bus No.DL-IV-2571 involved in the accident committed a wilful breach of the terms and conditions of policy by using the bus for hire and reward. The above said Appeals were dismissed by a common judgment of this Court dated 27.11.2012. The negligence or the quantum of compensation was not challenged in the said Appeals.
2. These Appeals are for enhancement of compensation. I shall take the cases one by one whether the compensation awarded calls for any enhancement.
MAC.APP.174/2008(Injury to Cheena)
3. The Appellant Cheena was a housewife. During the inquiry before the Claims Tribunal, it was established that she was admitted in Safdarjung Hospital from 20.08.1999 to 28.08.1999. She suffered fracture of nasal bone and fracture of left shift humerus. On account of complications, she was admitted in Batra Hospital on 01.09.1999 and was discharged on 06.09.1999. She proved on record expenditure of `41,329/- during her admission in the hospital. The Claims Tribunal awarded the compensation, which is tabulated hereunder:
4. It is urged by the learned counsel for the Appellant that the compensation awarded towards special diet, conveyance and also towards pain and suffering is on the lower side. In my view, taking into consideration the injuries suffered, the period of hospitalization and the period taken in recovery from the injury, the compensation awarded towards pain and suffering is on the lower side. The same is enhanced from `10,000/- to `30,000/- and towards special diet and conveyance is raised from `5,000/- to `10,000/-.
5. The compensation is thus enhanced by `25,000/- which shall carry interest @ 7% per annum (as awarded by the Claims Tribunal) from the date of the filing of the Petition till its payment.
6. This accident took place thirteen years back. Since there is marginal enhancement in the compensation awarded, therefore, the compensation shall be disbursed in favour of the Appellant on deposit.
7. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.187/2008(Injury to Vijender)
8. Appellant was working as a driver and was earning `3,500/- per month. He suffered fracture of nasal bone, fracture of mandible mandilla and compound depressed fracture. He remained admitted in Central Medical Centre, Hisar from 20.08.1999 to 21.08.1999, in Moolchand Hospital from 21.08.1999 to 01.09.1999 and then from 12.10.1999 to 22.10.1999.
9. The Claims Tribunal awarded the compensation, which is tabulated hereunder:
10. The learned counsel for the Appellant urges that the Appellant remained bedridden to bed for a period of six months. He was admitted in the hospital on three different occasions in the month of August, September and October. He was awarded a sum of `70,000/- only towards medical expenses. He spent a sum of `31,000/- at the time of his second admission in the Moolchand Hospital. Said sum of `31,000/- was not awarded to him. A bill for `31,000/- is available on the Trial Court record in addition to the bills for `70,000/-. Thus, she is awarded a sum of `1,01,000/- on account of expenditure incurred on medical treatment instead of `70,000/- awarded by the Claims Tribunal.
11. Taking into account the nature of injuries suffered by him, the Appellant needed services of an attendant. Even if the gratuitous services were rendered by family members, the Appellant cannot be deprived of the same for the offence committed by the tortfeasor. I am supported in this view by a Division Bench judgment of this Court in Delhi Transport Corporation and Anr. v. Kumari Lalita 22 (1982) DLT 170 (DB), where it was held as under:
“(33) Counsel for the Corporation argued that since Lalita is being looked after by her mother compensation ought to be reduced. We do not agree. In the case of Lalita the main question is of future care. Today she is being helped by her mother. But that does not mean that she is not to be compensated for services rendered to her. A legal agreement between mother and daughter is not necessary to claim compensation. We cannot deduct what is described as the 'domestic element' from the cost of care. A wrong doer cannot take advantage of this 'domestic element.' If the mother renders service to her, instead of a nurse, it is right and fust that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigham v. Harrison (1973) 3 All E.R.
463). The services of a wife and mother are worth more than those of a house-keeper because she is in constant attendance and does many more things than a house-keeper. (Regan v. Williamson (1976) 2 All E. R. 241)”.
12. Thus, I award a sum of `12,000/- (`2000/- x 6) for engaging an attendant for a period of six months. Keeping in view the nature of injuries, the period of hospitalization, the successive surgeries and the period of recovery, the compensation of `10,000/- awarded towards pain and suffering is enhanced to `40,000/-.
13. The compensation is recomputed as under:
14. The compensation is thus enhanced by `73,000/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment which shall be disbursed in favour of the Appellant.
15. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.191/2008(Death of Sumitra Devi)
16. During the inquiry before the Claims Tribunal, it was claimed that the deceased was looking after household work and was also doing stitching work of `100/- to `150/- per day. The Claims Tribunal held that the deceased was a housewife and awarded a compensation on the basis of the judgment of the Supreme Court in Lata Wadhwa & Ors. v. State of Bihar, 2001 ACJ 1735(SC). This Court in Royal Sundaram Alliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors.,2012 ACJ 721 laid down the principles for payment of compensation in case of loss of gratuitous services rendered by a housewife. This Court relied upon following judgments of the Supreme Court:-
i. General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
ii. National Insurance Company Limited v. Deepika & Ors., 2010 (4) ACJ 2221,
iii. Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1,
iv. Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,
v. Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 SC 1, vi Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,
vii. Morris v. Rigby (1966) 110 Sol Jo 834 and
viii. Regan v. Williamson 1977 ACJ 331 (QBD England), and laid down the principle for determination of loss of dependency on account of gratuitous services rendered by a housewife. Para 34 of the judgment in Master Manmeet Singh (supra) is extracted hereunder:-
“34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:-
i. Minimum salary of a Graduate where she is a Graduate.
ii. Minimum salary of a Matriculate where she is a Matriculate.
iii. Minimum salary of a non-Matriculate in other cases.
iv. There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is upto 40 years; the increase will be restricted to 15% where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where the age is more than 50 years.
v. When the deceased home maker is above 55 years but less than 60 years; there will be deduction of 25%; and when the deceased home maker is above 60 years there will be deduction of 50% in the assumed income as the services rendered decrease substantially. Normally, the value of gratuitous services rendered will be NIL (unless there is evidence to the contrary) when the home maker is above 65 years.
vi. If a housewife dies issueless, the contribution towards the gratuitous services is much less, as there are greater chances of the husband’s re-marriage. In such cases, the loss of dependency shall be 50% of the income as per the qualification stated in (i), (ii) and (iii) above and addition and deduction thereon as per (iv) and (v) above.
vii. There shall not be any deduction towards the personal and living expenses.
viii. As an attempt has been made to compensate the loss of dependency, only a notional sum which may be upto ` 25,000/- (on present scale of the money value) towards loss of love and affection and ` 10,000/- towards loss of consortium, if the husband is alive, may be awarded.
ix. Since a homemaker is not working and thus not earning, no amount should be awarded towards loss of estate.”
17. There was no evidence with regard to the deceased’s qualification. So, the legal heirs have to be awarded compensation on the basis of minimum wages of a non-matriculate which at the time of the accident were `2,541/-. There would be an addition of 25% as the deceased was aged 38 years and appropriate multiplier would be 16. The loss suffered by the Appellants on account of deprivation of gratuitous services rendered by deceased Sumitra Devi comes to `6,09,840/-(`2,541/- + 25% x 12 x 16).
18. In addition, the Appellants would be entitled to a sum of `15,000/-
towards loss of love and affection, `5,000/- each towards loss of consortium and funeral expenses. The overall compensation thus comes to `6,34,840/-.
19. Thus the compensation is enhanced by `3,74,840/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment. 15% each of the compensation shall be payable to Appellants No.2 to 4, rest 55% shall be payable to Appellant No.1, the husband of the deceased. The compensation payable to Appellants No.2 to 4 shall be held in fixed deposit in a nationalized bank for a period of five years. 75% of the amount payable to the share of Appellant No.1 shall be held in fixed deposit for a period of five years, rest 25% shall be released on deposit. The Appellants shall be entitled to quarterly interest on the amount held in fixed deposit.
20. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.192/2008(Death of Brij Bhushan)
21. This Appeal relates to death of Brij Bhushan. He was working as a Library Attendant in the Supreme Court and was getting a gross salary of `9,023/- per month. The Claims Tribunal instead of taking the gross salary of the deceased into consideration to award the loss of dependency took only the net salary of `7,789/-, deducted 1/3rd towards personal and living expenses and applied a multiplier of 11 to compute the loss of dependency as `6,85,476/-. In addition, the Claims Tribunal awarded a sum of `10,000/- towards funeral expenses and `5,000/- each towards loss of love and affection and loss of consortium.
22. It is established that the deceased was aged 40 years and 07 months on the date of the accident. In Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121, it was laid down that the actual salary would be augmented by adding 30% towards future prospects when the deceased is between 40-50 years. Similarly, the multiplier when the deceased was aged about 41 years would be 14 and deduction towards personal and living expenses would be 1/5th as the number of dependents were eight. The deceased was getting a sum of `100/- as transport allowance and `15/- as washing allowance. Deducting the said amount from the gross salary being incidental to employment, the loss of dependency comes to `15,89,577/-(`8,908/- x 12 – 5000/-(Income Tax) + 30% x 4/5 x 15).
23. The Appellants would be further entitled to a sum of `15,000/- loss of love and affection and `5,000/- each towards loss of consortium, loss to estate and funeral expenses. The overall compensation thus comes to `16,19,577/-.
24. Thus the compensation is enhanced by `9,14,101/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment.
25. Out of the enhanced amount of compensation, a sum of `50,000/- each along with proportionate interest shall be payable to each of the Appellants No.2 to 9. Rest shall be payable to Appellant No.1.
26. The compensation payable to the Appellants No.2 to 9 shall be held in fixed deposit in a nationalized bank for a period of five years. 75% of the amount payable to the share of Appellant No.1 shall be held in fixed deposit for a period of five years, rest 25% shall be released on deposit. The Appellants shall be entitled to quarterly interest on the amount held in fixed deposit.
27. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.194/2008(Injury to Ram Avtar)
28. Appellant Ram Avtar suffered fracture of right index finger, middle finger, ribs and multiple abrasions on various parts of the body. He claimed that he was bed-ridden for six months. It was established that he was working as a safai karamchari with Delhi Legal Services Authority. He remained under treatment in Safdarjung Hospital and Batra Hospital. He proved a medical certificate Ex.PW3/2 vide which he was advised rest from 12.10.1999 to 12.12.1999. He was declared fit to join duty on 14.12.1999. The Claims Tribunal awarded a compensation of `15,000/-, which is tabulated hereunder:
29. It is urged by the learned counsel for the Appellant that the Appellant suffered permanent disability and fracture in right hand, fracture of index finger and middle finger. There was deformity of two fingers of right hand. Because of disability, he cannot clinch his fist. A perusal of the OPD card Ex.PW3/3 issued by Safdarjung Hospital reveals that on 18.01.2002 the Appellant was declared to have traumatic deformity of middle and index finger of right hand with stiffness of ring and little finger. It is thus evident that the Appellant had to undergo a prolonged treatment and he could not recover from the injuries. Although, the Appellant was declared fit to join duties only w.e.f. 14.12.1999, yet the Claims Tribunal awarded him loss of the income for just two months @ `5000/- per month. The same is required to be raised to four months at the earlier said rate. Thus, I award a compensation of `20,000/- towards loss of income.
30. The compensation awarded towards special diet and conveyance is raised from `2,000/- to `10,000/-, towards pain and suffering from `3,000/- to `20,000/-. I further award him a compensation of `20,000/- towards loss of amenities because of the deformity in the fingers of the right hand although, he has not obtained and proved any disability certificate till the deformity is proved. The overall compensation is enhanced from `15,000/- to `70,000/-.
31. The compensation is thus enhanced by `55,000/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment.
32. This accident took place thirteen years back. Since there is marginal enhancement in the compensation awarded, therefore, on deposit the compensation shall be disbursed in favour of the Appellant.
33. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.223/2008(Injury to Master Abhishek)
34. Appellant Master Abhishek who was five years old boy suffered fracture of right hip bone, fracture upper right end shaft femur, head injury and multiple abrasions on various parts of his body. Immediately after the accident, the Appellant was admitted in Tarawati Hospital, Bhadra. He was shifted to Moolchand Hospital where he remained admitted from 22.08.1999 to 28.08.1999. He was operated in the hospital for fracture of shaft femur on 23.08.1999. The Claims Tribunal awarded a sum of `40,208/-, which is tabulated hereunder:
35. It is urged by the learned counsel for the Appellant that the compensation of `10,000/- awarded towards pain and suffering is on the lower side. Loss of income of the parents is also on the lower side. Vijender is father of Appellant Abhishek. He also suffered injuries in this very accident. He has been separately awarded towards attendant charges and loss of income. So, loss of income to the Appellant, therefore, would be duplication of the award of compensation. The amount of `10,000/- awarded as loss of income to the parents, therefore, was really towards attendant charges which appears to be just and reasonable.
36. Keeping in view the fact that the Appellant had to be operated upon for fracture of shaft femur and remained in plaster for two-three months, the compensation of `10,000/- towards pain and suffering is on the lower side. The same is enhanced to `25,000/-.
37. Thus, there is an enhancement of compensation of `15,000/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment.
38. Since there is marginal enhancement in the compensation awarded, therefore, on deposit the enhanced compensation shall be disbursed in favour of the Appellant.
39. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.230/2008(Death of Ramesh Kumar)
40. The Appellants who are legal representatives of deceased Ramesh Kumar claimed that the deceased was employed as a safai karamchari in Delhi Race Course Club and was earning a sum of `3,500/- per month. His salary certificate Ex.PW6/A was placed on record which proved the deceased’s salary as `2500/- per month. The deceased’s age was proved as 42 years. The deceased was survived by a widow and a son. The deduction towards personal and living expenses, therefore, would be 1/3rd. The Appellant, was however, entitled to an addition of 30% towards inflation on the basis of Judgment of Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559. The loss of dependency thus comes to `3,64,000/-(`2,500/- + 30% x 2/3 x 12 x 14).
41. The Appellants would further be entitled to a sum of `15,000/- towards loss of love and affection and `5,000/- each towards funeral charges, loss of consortium and loss to estate. The overall compensation thus comes to `3,94,000/-.
42. Thus the compensation is enhanced by `1,41,000/- which shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment. 25% of the enhanced compensation shall go to the Appellant No.2, rest 75% shall go to the First Appellant, that is, deceased’s widow. 50% of the enhanced compensation shall be held in fixed deposit in a nationalized bank for a period of three years. Rest shall be released on deposit. The Appellants shall be entitled to quarterly interest on the amount held in fixed deposit.
43. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
MAC.APP.254/2008(Death of Som Prakash)
44. The Appellants are legal representatives of deceased Som Prakash. He was working as a Peon in Air Force Station. As per salary certificate Exs. PW5/A and PW5/B, he was getting a gross salary of `5045/- including transport allowance of `100/-. The Claims Tribunal took the mean of the deceased’s salary which he was getting at the time of the accident and his projected salary at the time of his retirement, deducted 1/3rd towards personal and living expenses and applied a multiplier of 10 to compute the loss of dependency as `4,21,800/-.
45. The compensation awarded is tabulated hereunder:
46. The deceased was survived by his wife, two minor sons and a minor daughter. Thus, deduction towards personal and living expenses will be 1/4th as against 1/3rd taken by the Claims Tribunal. Deceased’s age was established as 32 years. The appropriate multiplier in the circumstance would be 17. Since the deceased was in settled government service and was less than 40 years, there would be an augmentation of 50% towards future prospects. The loss of dependency thus comes to `11,34,877/-
(`4,945/- + 50% x 3/4 x 12 x 17).
47. The Appellants would be further entitled to `15,000/- towards loss of love and affection and `5,000/- each towards loss of consortium, loss to estate and funeral expenses. The overall compensation thus comes to `11,64,877/-.
48. The enhanced compensation of `7,22,877/- shall carry interest @ 7% per annum from the date of the filing of the Petition till its payment. 15% each of the enhanced compensation shall go to the Appellants No.2 to 4, rest 55% shall go to the First Appellant. The enhanced compensation payable to Appellants No.2 to 4 shall be held in fixed deposit in a nationalized bank for a period of three years. 50% of the enhanced compensation payable to the First Appellant shall be held in fixed deposit for a period of five years, rest shall be released to her on deposit. The Appellants shall be entitled to quarterly interest on the amount held in fixed deposit.
49. The enhanced compensation along with interest shall be deposited by the Respondent Oriental Insurance Company Ltd. with the Claims Tribunal within six weeks.
50. All the Appeals are allowed in above terms.
51. Pending Applications stand disposed of.
DECEMBER 20, 2012
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(G.P. MITTAL) JUDGE