UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 292/2002
SMT. TARA DEVI AND ORS. ..... Appellants
Through: Mr. Y.R. Sharma, Advocate
versus
SH. SUNIL KUMAR SHARMA AND ORS. ..... Respondents
Through: Ms. Neelam Singh, Advocate for
the respondent No.3
% Date of Decision : July 18, 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
: REVA KHETRAPAL, J.
1. By way of this appeal, the appellants seek to assail the
judgment and award dated 9th April, 2002 passed by the Motor
Accidents Claims Tribunal on the ground that a very meagre and
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inadequate compensation has been awarded to them for the death of
their only son in a motor vehicular accident.
2. The facts relevant for the disposal of the appeal are that on 14 th
June, 1995, Jeevan Singh, aged 21 years, was travelling in a bus
bearing No.DL-1P 2741 and while alighting from the said bus at
NDSE, Part 1, Ring Road, New Delhi, he sustained grievous injuries
on account of the rashness and negligence of the driver of the said bus
who started the bus all of a sudden, as a result of which the boy fell
down and came under the left front wheel of the bus. A claim petition
under Section 166 of the Motor Vehicles Act, 1988 was filed by his
parents seeking compensation to the tune of ` 10 lakhs for his
untimely demise. The said claim petition was not contested by the
driver and owner of the offending bus, who chose to remain ex parte.
The insurer, M/s. National Insurance Co. Ltd., however, contested the
petition and in its written statement disowned its liability to
indemnify the insured alleging that the offending vehicle was not
being driven by a person holding a valid driving licence. The said
plea raised in defence was negated by the Claims Tribunal and an
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award in the sum of ` 2,60,200/- with simple interest @ 9% per
annum from the date of the filing of the petition till the date of
payment was passed in favour of the appellants. It is this award
against which the present appeal has been filed.
3. Mr. Y.R. Sharma, the learned counsel for the appellants has
challenged the award principally on the following grounds:
(a) The Claims Tribunal erred in assessing the income of the
deceased to be in the sum of ` 2,500/- per month whereas his
income was at least ` 4,000/- per month, if not more.
(b) The Claims Tribunal erred in not taking into consideration the
chances of increase in the income of the deceased and the
future prospects of advancement of the deceased in his chosen
field of work.
(c) The Claims Tribunal wrongly deducted one-half of the
income of the deceased for his personal expenses and
maintenance, thereby assessing the monthly dependency of
the appellants in the sum of ` 1,250/- per month only. The
deduction ought not to have been more than one-third of the
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income of the deceased [See Oriental Insurance Co. Ltd. v.
Deo Patodi and Others 2009 ACJ 2359 and Jayakodi & Ors.
v. National Insurance Co. Ltd. & Anr. II (2010) ACC 592
(SC)].
4. Ms. Neelam Singh, the learned counsel for the Insurance
Company sought to counter the contentions of the learned counsel for
the appellants by submitting that the award was a just and fair one and
deserved to be maintained.
5. Adverting first to the aspect of assessment of the income of the
deceased, I am inclined to agree with the learned counsel for the
appellants that the income of the deceased has not been properly
assessed by the learned Tribunal. There is on record the testimony of
Shri Bhawan Singh, the father of the deceased who appeared in the
witness box as PW2 to depose that his son was an electrician with
M/s. Balaji Electric Store, 67, Sarojini Nagar on part-time basis and
was also doing his own personal work and used to earn about
` 4,000/- per month, out of which he used to send ` 2,000/- per
month to the appellants. The testimony of this witness is
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corroborated by the testimony of Shri Parkash Gangwani, who
appeared in the witness box as PW3 and stated that he was a partner
in M/s. Balaji Electric Store at the aforementioned address and that
the deceased was doing part-time job of electric repair work with the
said store, earning thereby ` 2,500/- per month. The witness further
testified that the deceased was also doing his own work wherefrom he
was earning about ` 2,000/- per month; had he been alive, he would
have earned ` 6,000/- to ` 7,000/- per month. He also proved on
record document Ex.P5 to the effect that the deceased was earning
` 2,500/- per month from M/s. Balaji Electric Store.
6. The testimonies of PW2 Shri Bhawan Singh (father of the
deceased) and PW3 Parkash Gangwani (part-time employer of the
deceased) are unrebutted and unchallenged on record. In this view of
the matter, I find no difficulty in assessing the income of the deceased
to be in the sum of ` 4,000/- per month, that is, ` 2,500/- from M/s.
Balaji Electric Store plus ` 1,500/- (approximately) from his own
work. According to PW3, had the deceased remained alive, he would
have earned a sum of ` 6,000/- to ` 7,000/- per month. Although it is
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difficult, in my view, to assess the future income of the deceased and
some amount of guess work and conjecture are necessarily involved,
it is by no means an impossible job. Judicial notice may be taken of
the fact that the deceased was an electrician and keeping in view the
fact that he was only 21 years of age on the date of the accident, there
was every chance of a manifold increase in his income. Even
assessing his income on a conservative basis and adding 50% by way
of future increase to his income on the date of the accident, the
average monthly income of the deceased for the purpose of
assessment of loss of dependency of the appellants comes to ` 6,000/-
per month, that is, ` 4,000/- + ` 2,000/- (50% increase) = ` 6,000/-.
7. Mr. Y.R. Sharma, the learned counsel for the appellants, as
noted above, urged that not more than one-third of the income of the
deceased should have been deducted by the Tribunal towards the
personal expenses and maintenance of the deceased keeping in view
the fact that the deceased was the only son of his parents, who had
three other progeny apart from the deceased, all of whom were
daughters. Had the three daughters been unmarried, this Court would
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have been inclined to uphold the aforesaid contention of Mr. Sharma,
but keeping in view the fact that it is set out in the claim petition that
two out of the three sisters of the deceased were married on the date
of the accident, no fault can be found with the deduction of one-half
of the income of the deceased by the learned Tribunal towards his
personal expenses. Accordingly, the monthly loss of dependency of
the appellants is held to be one-half of ` 6,000/-, that is, ` 3,000/- per
month or ` 36,000/- per annum (` 3,000/- x 12). Multiplying the
aforesaid multiplicand with the multiplier of 15 as adopted by the
Claims Tribunal, the loss of dependency of the appellants comes to
` 5,40,000/-.
8. The Claims Tribunal apart from awarding pecuniary damages
awarded a sum of ` 5,200/-to the appellants as expenses incurred by
the appellants in hiring a van for the removal of the body of the
deceased to his native place and ` 5,000/- as expenses of funeral and
last rites. The learned Tribunal also awarded a sum of ` 25,000/- for
the loss of love and affection of the deceased. In addition to the
aforesaid, a sum of ` 5,000/- is awarded to the appellants towards the
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loss of estate of the deceased, that is, in all, a sum of ` 40,200/- is
awarded to the appellants towards pecuniary and non-pecuniary
damages.
9. The award is accordingly modified to the extent that the
appellants are held entitled to receive an enhanced amount of
` 3,20,000/-. The appellants are also held entitled to interest @ 7.5%
per annum on the enhanced amount from the date of the accident till
the date of payment. The Insurance Company shall deposit the
enhanced amount of compensation with the learned Tribunal latest
within 30 days from the date of the passing of this order.
10. The appeal stands disposed of accordingly.
REVA KHETRAPAL
(JUDGE)
July 18, 2011
km
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