Rashmi Devi and Others vs Sanjeev Kumar and Others

G.P. Mittal, J.—The Appellants, who are the legal heirs of deceased Pritam Singh seek enhancement of compensation for the deceased''s death in a motor accident, which took place on 15.02.2007. It was alleged that the deceased was 54 years at the time of accident. His salary was retrospectively revised to the basic pay of Rs. 24,060/- apart from payment of 6% as dearness allowance on the date of the accident. It was claimed that the deceased was entitled to the transport allowance @ Rs. 1,830/- per month in the revised pay scale. The Tribunal took the deceased''s income as Rs. 24,460/- per month and deducted 1/4th towards personal living expenses, applied the multiplier of ''11'' to compute the loss of dependency as Rs. 24,21,540/- after awarding notional sums towards non pecuniary damages, the overall compensation of Rs. 19,16,540/- was awarded.

The contentions raised on behalf of Claimants are: -

(i) The Transport Allowance of Rs. 1,860/- and the House Rent Allowance @ 30% of the basic pay was not taken into consideration while computing the loss of dependency.

On the other hand, it is urged on behalf of Respondent Insurance Company that the Transport Allowance was incidental for reaching the office during employment. The said amount was not for the benefit of the family. The same was not liable to be included for the purpose of computation of the loss of dependency. It is contended that since the deceased was allowed government accommodation, the HRA was not liable to be considered in computing the loss of dependency. It is urged that the deceased''s elder son was aged 26 years. His testimony that he was working only on part time basis was of no avail. He being a married son was not financially dependent on the deceased and thus taking one unmarried son of the deceased as dependent, 1/3rd of the deceased''s income was liable to be deducted towards his personal living expenses.

It is well settled that all allowances for the benefit of the employee are to be taken into consideration for the purpose of computing the loss of dependency. The Transport Allowance given to an employee to reach his office is an allowance incidental to employment. The same was, therefore, not liable to be included in the deceased''s actual income. It was, however, not disputed in cross-examination of the first Appellant that a government accommodation was provided to the deceased and, therefore, he was not being paid the House Rent Allowance, which is @ 30% of the Basic pay + Grade Pay. The provision of a government accommodation or payment of House Rent Allowance when not availing the facility of government accommodation is for the benefit of the family thus 30% of the pay shall have to be included in the deceased''s salary without any liability of payment of income tax on this amount. In Raghuvir Singh Matolya and Others Vs. Hari Singh Malviya and Others, , it was held that House Rent Allowance (HRA) is to be included in the deceased''s income for computation of the loss of dependency.

It has come in the evidence of the second Appellant Naveen Kumar that he was married. He deposed that he was employed only on part time basis. In any case, he cannot be treated as financially dependent on his deceased father. The deduction towards personal living expenses, therefore, should have been 1/3rd instead of 1/4th. Since, the amount of HRA is not taxable if utilized for payment of rent, there would not be any deduction towards income tax on this amount. On the basis of above discussion, the loss of dependency comes to Rs. 25,80,227/- [ Rs. 24,060/- (basic pay) + Rs. 1,443/- (6% DA) x 12 - Rs. 40,810/- (income tax) + Rs. 86,616/- (HRA Rs. 7218/- x 12) - 1/3rd x 11 = Rs. 25,80,227/-].

The Tribunal awarded a sum of Rs. 1,25,000/- towards love and affection, which is on the higher side. I may mention that, where the Claimants are entitled to loss of dependency on actual basis, normally a nominal sum is awarded under the head of 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 and Others Vs. Bachitar Singh and Others, and in Baby Radhika Gupta and Others Vs. Oriental Insurance Co. Ltd. and Others, granted only Rs. 25,000/- (in total to all the claimants) under the head of loss of love and affection. Thus, I reduce the compensation under this head to Rs. 25,000/- only.

The enhanced compensation of Rs. 7,18,687/- shall carry interest @ 7.5% per annum from the date of filing of the petition till the date of the payment.

Out of the enhanced compensation 25% along with proportionate interest shall be paid to the third Appellant Jai Singh. Rest of the amount shall go to the first Appellant Rashmi Devi.

20% of the enhanced amount along with proportionate interest shall be released to the first and the third Appellant forthwith. Rest of the amount shall be held in FDR for a period of 5 years in UCO Bank, Delhi High Court Branch, New Delhi. Respondent No.3 the Oriental Insurance Company Ltd. is directed to deposit the enhanced amount along with interest within 30 days.

The Appeal is allowed in above terms.