REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 619/2003
D.T.C. ..... Appellant
Through: Mr. J.N. Aggarwal, Advocate
versus
LATA MANSUKHANI & ORS ..... Respondents
Through: Mr. Navneet Goyal, Advocate
% Date of Decision : August 10, 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 appellant-Delhi Transport
Corporation seeks to assail the judgment and award dated 30th May,
2003 passed by the learned Motor Accidents Claims Tribunal, Delhi.
2. The facts may be briefly recapitulated as follows.
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On 18.07.1999, one Mohan Mansukhani, aged about 55 years,
was going from his house in Model Town towards the bus stand, after
crossing the G.T. Karnal Road, when he was hit by bus No.DBP-6048
on the road leading to the bus stand. Allegedly the said bus was
being driven by the respondent No.5, Angrez Singh at a very fast
speed, recklessly and negligently and it hit the deceased from behind
causing fatal injuries. The respondents No.1 to 4, who are the legal
representatives of the deceased, being his widow and three daughters,
filed a Claim Petition under Section 166 of the Motor Vehicles Act,
1988 seeking compensation for the untimely demise of their bread
earner. The learned Motor Accidents Claims Tribunal after analyzing
the evidence adduced before it held that the accident which had
resulted in the unfortunate death of the deceased was the outcome of
the rash and negligent driving of the offending bus by the respondent
No.5. As regards the quantum of compensation, the learned Tribunal,
on the basis of the testimony of PW3 Smt. Lata Mansukhani,
calculated the total loss of dependency of the respondents No.1 to 4 to
be in the sum of ` 6,45,348/-, and after adding the non-pecuniary
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damages to the said amount awarded a sum of ` 6,70,348/- with
interest at the rate of 9% per annum from the date of the petition till
realisation. The appellant as the owner of the offending bus was
directed to pay the award amount.
3. Aggrieved by the aforesaid findings of the Tribunal, the present
appeal has been preferred by the appellant. Mr. J.N. Aggarwal, the
learned counsel for the appellant, has challenged the award primarily
on two grounds. The first is that the learned Tribunal ought to have
held that the deceased met with his death due to his own acts of
omission and commission, in that the deceased due to his exuberance
attempted to board the bus before it had been parked at the stand for
boarding by the commuters. Mr. Aggarwal contended that the
negligence of the deceased thus contributed to his own death and to
that extent the award amount deserved to be scaled down.
4. The second contention of Mr. Aggarwal, the learned counsel
for the appellant, pertains to the quantum of compensation awarded
by the learned Tribunal. It was contended that there was no basis for
the Tribunal to arrive at the finding that the monthly loss of
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dependency of the respondents No.1 to 4 was ` 5,000/- per month. It
was further contended that there was no evidence on record to bear
out the fact that the income of the deceased would have increased
over the passage of years and, as such, the learned Tribunal erred in
applying the dictum laid down by the Supreme Court in the case of
Sarla Dixit vs. Balwant Yadav, AIR 1996 SC 1274. The counsel
contended that though no specific reference had been made by the
learned Tribunal to the said decision of the Supreme Court, the
Tribunal had taken the average monthly income of the deceased at `
7,333/- by doubling his actual earnings of ` 5,000/- to ` 10,000/- and
thereafter dividing the sum total of his actual earnings and anticipated
earnings by the figure of two. The counsel for the appellant also
contended that the Tribunal ought to have applied the multiplier of 8
and, at best, the multiplier of 9 to the multiplicand constituting the
loss of dependency of the legal representatives of the deceased.
Instead, a multiplier of 11 had been applied, which could not be
termed as the appropriate multiplier keeping in view the fact that the
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deceased was admittedly 55 years and 10 months of age at the time of
the accident.
5. Mr. Navneet Goyal, the learned counsel for the respondents
No.1 to 4, on the other hand, sought to support the findings of the
learned Tribunal with regard to the causation of the accident and with
regard to the rash and negligent manner in which the offending bus
was being driven by the respondent No.5 resulting in the unfortunate
accident. As regards the quantum of compensation awarded by the
learned Tribunal, Mr. Goyal submitted that the compensation
deserved to be enhanced, inter alia, on the following grounds:
(i) The learned Tribunal ought to have taken the average
income of the deceased as ` 7,500/- instead of ` 7,333/-.
(ii) Keeping in view the fact that only one daughter of the
deceased was married and there were two unmarried
daughters of the deceased apart from the wife of the
deceased, the learned Tribunal ought to have deducted
only one-fourth of the average income of the deceased
towards his personal expenses and maintenance.
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(iii) The learned Tribunal ought to have capitalized the loss
of dependency suffered by the claimants by the
multiplier of 15 keeping in view the fact that one of the
daughters of the deceased is mentally challenged and her
dependency is a lifelong one.
(iv) The learned Tribunal erred in awarding meagre amount
towards the pecuniary and non-pecuniary damages and
no amount whatsoever has been awarded towards the
loss of estate.
6. Adverting to the contention of the learned counsel for the
appellant with regard to the contributory negligence of the deceased,
in my view, the same is totally devoid of merit. The Tribunal has
threadbare analysed the evidence of PW2 Shri Satbir Gupta, an eye-
witness to the accident as well as the deposition of RW1 Angrez
Singh, the driver of the offending bus to arrive at the conclusion that
the rash and negligent driving of the latter had resulted in the fatal
accident. I find no reason to differ with the conclusions of the
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Tribunal in this regard, but a look first at the testimonies of the said
two witnesses.
7. PW2 Shri Satbir Gupta, in the course of his testimony, stated
that on the fateful day he was coming from Lal Bagh Ashram and
going towards the bus terminal with two other persons. The
deceased, Shri Mohan Mansukhani was ahead of him and was going
into the bus terminal when bus No.DBP-6048 came from behind and
hit against him with the front bumper of the bus and dragged him,
resulting in his collar bones being broken completely and his
receiving other injuries as well. He further testified that the bus
driver was driving at a fast speed. He also stated that he had narrated
the incident to the police and given them all the particulars when he
came to know that the said Mohan Mansukhani had died. Though the
witness was extensively cross-examined, he did not budge from the
stand taken by him in his examination-in-chief. Thus, the aforesaid
testimony of PW2 Satbir Gupta emerged unshaken after cross-
examination. He clarified that the accident had taken place inside the
bus terminal near the ‘Juicewala shop’. In answer to a specific query
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put to him, he stated that the speed of the bus might be 40/45 km per
hour and that the front bumper left portion had hit the deceased. He
categorically denied the suggestion put to him that the deceased had
tried to board the moving bus and had fallen down while doing so. A
lot of emphasis has been laid by the learned counsel for the appellant
on the fact that the witness in his cross-examination admitted that he
knew the deceased, but this, in my view, is not a sufficient ground to
discard the testimony of the witness whose statement appears to be
otherwise worthy of credence and has passed the test of extensive
cross-examination.
8. As against this, the statement of RW1 Angrez Singh appears to
me to be a self-serving one. He, in his testimony, stated that the bus
was moving at a slow speed towards Azadpur Terminal for booking a
scheduled trip of Route No.114. At that time, a passenger seeing the
slow speed of the bus tried to board the moving bus, as a result of
which he received accidental injuries. He deposed that he had written
to the Depot Manager that the said accident was caused due to the
rashness and negligence of the deceased, but in the course of his
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cross-examination was compelled to admit that he had no proof of the
same. He was also forced to admit that he had not complained to any
police official regarding his false implication in the criminal case. He
also admitted in his cross-examination that it was only after entering
the bus terminal at Azadpur that his bus was to be awarded a trip to
Kutub Garh. In my view, it is difficult to fathom why a person would
try to board a bus which was entering the terminal and had yet to be
awarded a trip. Had the bus been leaving the terminal, it could have
been argued that the person in his attempt not to miss the bus had
tried to board the running bus.
9. Apart from the above, in my opinion, the entire defence of the
appellant is falsified by the site plan (Ex. P7) prepared by the
Investigating Officer, wherein place ‘A’ has been shown as the place
of accident which is just towards the right side of the middle of the
road, and place ‘B’ has been shown to be just near the corner of the
road towards the left side where the deceased was found lying after
the accident. It has been rightly observed by the learned Tribunal that
a person falling down from a bus while trying to board a moving bus
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cannot fall down towards the right side of the bus when the entrance
gate of the bus is always towards the left side and thus the story of
RW1 stands completely falsified.
10. Significantly, PW2 Satbir Gupta also specifically deposed that
the bus came from behind and hit the deceased with the front bumper
and dragged him for some distance. The version of PW2 is supported
by the site plan Ex.P7, wherein place ‘A’ has been shown as the place
of the accident which is in the middle of the road, which suggests that
the deceased was hit by the front bumper. The deposition of PW2
that the bus dragged the deceased and his collar bones were broken is
also corroborated by the post-mortem report. Further, I find no
reason to disbelieve the testimony of PW2 Satbir Gupta. No motive
whatsoever was imputed to him for deposing falsely. He was one of
the persons accompanying the deceased at the time of the accident
and is a natural witness to the accident. Thus, the learned Tribunal
rightly relied upon his testimony to hold that the driver of the
appellant was guilty of rash and negligent driving. It also cannot be
lost sight of that the driver of the bus was entering a bus terminal,
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presumably crowded, and as the driver of a heavy vehicle it was his
duty to have ensured that he drove the bus carefully. PW2 has stated
that the bus was being driven at a fast speed, and the fact that the
deceased was dragged by the bus bears out the testimony of PW2.
The findings of the learned Tribunal with regard to the negligence of
the respondent No.5 are accordingly affirmed.
11. As regards the quantum of compensation, PW3 Smt. Lata
Mansukhani categorically deposed in the witness box that the
deceased was running a stationery shop at Model Town and he used
to give her ` 5,000/- per month for household expenses. Some
photographs of the shop have been placed on record, which, though
have not been duly proved, show that the deceased was running a
shop in the nature of a General Store-cum-Stationery shop. PW3
further deposed that her deceased husband had purchased a house
during his lifetime and placed on record the Agreement to Sell of the
said house. No rebuttal evidence was adduced and accordingly the
Tribunal assessed the monthly income of the deceased at ` 5,000/-
per month. I see no plausible reason for coming to a contrary
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conclusion. However, I am not inclined to agree with the findings of
the learned Tribunal with regard to the future earnings of the
deceased. As noted hereinabove, the Tribunal had doubled the
earnings of the deceased and after adding the actual earnings of the
deceased on the date of the accident to his anticipated earnings
divided the said figure by two, to arrive at the average monthly
income of the deceased as ` 7,333/-. I do not find any evidence on
record to justify the conclusion that the earnings of the deceased
would have increased in the years to come. The deceased was 55
years of age and presumably over the years his business must have
gathered momentum, and whether his income would have risen much
further in the coming years or decreased is entirely a matter of
conjecture.
12. I am fortified in coming to the above conclusion from the
decision rendered by the Supreme Court in the case of Smt. Sarla
Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6
SCC 121, wherein the Supreme Court has held that in view of the
imponderables and uncertainties, as a rule of thumb an addition of
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50% of actual salary to the actual salary income of the deceased
towards future prospects should be made where the deceased has a
permanent job and is below 40 years and an addition of only 30%
should be made if the age of the deceased is between 40 to 50 years
and there should be no addition, where the age of the deceased is
more than 50 years. It was further held that where the deceased was
self-employed, as in the instant case, the Courts will usually take only
the actual income at the time of the death; a departure from the
aforesaid dictum should be made only in rare and exceptional cases
involving special circumstances.
13. I am constrained to hold that in the present case there appear to
be no special circumstances in this case to justify a departure from the
aforesaid guidelines laid down by the Supreme Court. Accordingly,
the average monthly income of the deceased for the purpose of
computing the loss of dependency of his legal representatives is
assessed to be in the sum of ` 5,000/- only. However, keeping in
view the fact that the deceased left behind him his wife and three
daughters, that is, four dependents, a deduction of one-fourth only is
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required to be made from his income towards his personal expenses.
Thus, the average monthly loss of dependency of his legal
representatives comes to ` 3,750/- per month and the annual loss of
dependency comes to ` 45,000/- per annum. To the aforesaid
multiplicand, the Tribunal has applied the multiplier of 11, and I think
rightly so. As held in the case of Sarla Verma (supra), the
appropriate multiplier where the age of the deceased is between 51 to
55 years is the multiplier of 11, which incidentally is also the
multiplier set out in the Second Schedule to the Motor Vehicles Act,
1988. Thus calculated, the respondents No.1 to 4 are held entitled to
receive pecuniary damages in the sum of ` 4,95,000/-.
14. In addition to the aforesaid pecuniary amount, the respondents
No. 1 to 4 are also held entitled to receive a sum of ` 10,000/-
towards loss of consortium, a sum of ` 10,000/- towards the loss of
estate, ` 25,000/- towards the loss of love and affection and `
10,000/- towards funeral expenses and last rites of the deceased. The
total amount of compensation awardable to the respondents No. 1 to 4
thus comes to ` 5,50,000/-. The quantum of compensation is
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accordingly reduced from ` 6,70,348/- to ` 5,50,000/- with interest as
awarded by the learned Tribunal.
15. The award is modified to the aforesaid extent. Resultantly, the
appeal is allowed in part.
REVA KHETRAPAL
(JUDGE)
August 10, 2011
km
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