* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 116/1998
Date of reserve: 3rd February, 2009
Date of decision: 31st March , 2009
%
SUMITRA & ORS ..... Appellants
Through : Mr. Amarjit Singh, Adv.
versus
UP STATE ROADWAYS TPT.CORPN.
& ANR ..... Respondents
Through : Ms. Garima Prashad and
Ms. Suchita Sharma, Advs.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
JUDGMENT
1. The appellants have challenged the award of the learned
Tribunal whereby the compensation of Rs.1,58,500/- was
awarded to them. The appellants seek enhancement of the
award amount.
2. On 25th December, 1993 at about 7:45 pm, the deceased
was going on his two wheeler scooter No.DL-5S-7028. His
employee, Lakhan Ram Chaurasia was sitting on the pillion.
When the scooter reached in front of Ram Singh Hospital near
Krishna Nagar, a U.P. Roadways Bus hit him from behind due to
which the deceased was thrown on one side and his employee,
FAO No. 116/1998 Page 1 of 10
Lakhan Ram was thrown on the other side. The deceased
succumbed to the injuries suffered in the accident.
3. The appellant was a young boy aged 22 years. At the
time of his death, he was unmarried and was survived by his
mother and four sisters out of which two sisters were
unmarried at the time of the accident. The father of the
deceased had already pre-deceased him and, therefore, the
entire burden of maintaining the family was on the deceased.
4. In the claim petition before the Tribunal, it was contended
that the deceased was the sole proprietor of M/s Arora Tent and
Electric Store and he was earning Rs.6,000/- per month.
5. The learned Tribunal computed the compensation
payable to the appellants by taking the income of the deceased
at Rs.1,500/- in parity with an unskilled labourer out of which
Rs.500/- was deducted as the amount that the deceased would
have spent on himself and the dependency of the appellants
was computed at Rs.1,000/- per month on which after applying
the multiplier of 12, the loss of dependency was assessed at
Rs.1,44,000/-. Rs.10,000/- has been awarded to appellant
No.1 for love and affection, Rs.2,000/- for funeral expenses and
Rs.2,500/- for loss of estate.
6. The appellant has challenged the impugned award of the
Learned Tribunal mainly on three grounds. The first ground of
challenge is that the deceased was running the business of tent
and electric store and was earning Rs.6,000/- per month but
FAO No. 116/1998 Page 2 of 10
the Learned Tribunal erred in drawing the parity with an
unskilled labourer and taking his income as Rs.1,500/- per
month. The second ground is that the Second Schedule of the
Motor Vehicles Act provides the multiplier of 17 taking the age
of the deceased but the Learned Tribunal erred in applying the
lower multiplier of 12. The third ground is that very low amount
of Rs.10,000/- has been awarded for love and affection and
Rs.2,500/- for loss of estate .
7. With respect to the income of the deceased, the
appellants examined three witnesses. Appellant No.1
appeared as PW-3 and deposed that the deceased was running
the business of tent and electric shop and was earning
Rs.6,000/- per month. She further deposed that the deceased
used to give whole amount of Rs.6,000/- to her for household
expenses after keeping his pocket money and other expenses
of the shop. She further deposed that the deceased was her
only son and the only earning hand in the family and her two
daughters were married whereas the other two daughters were
of marriageable age. She stated that her husband had already
expired and the shop was closed down after the death of the
deceased. The appellant further stated that the business of
tent and electric store was earlier being carried on by her
husband and after his death, the deceased was doing the
business. The witness stated in cross-examination that the
deceased was having three employees out of which one
FAO No. 116/1998 Page 3 of 10
employee was sitting on the pillion of the scooter along with the
deceased. In cross-examination, she admitted that the
deceased was not paying Income Tax. She further admitted
that she has not filed any document or any account books of
the shop to prove the income of the deceased.
8. The appellants produced two more witnesses to
corroborate the statement of PW-3. PW-1, Mr. Sanjay Chadha
is running the business of photography opposite to the shop of
the deceased. He stated that the income of the deceased was
Rs.6,000/- to Rs.6,500/-. PW-1 took the photographs of the
U.P. Roadways Bus and the scooter. He also exhibited the
photographs of the deceased as Ex.PW1/K1 to PW1/K3. PW-2,
Vijay Arora is the neighbour of the appellants. He also
corroborated the statement of the deceased with respect to the
income of Rs.6,000/-.
9. I have perused the evidence on record. Ex.PW1/K1 to
Ex.PW1/K3 are the photographs of the deceased who was
smart and handsome young boy. He was matriculate. It has
been proved by PW-1, PW-2 and PW-3 that the deceased was
running the business of tent and electric store in the name of
‘M/s. Arora Tent and Electric Store’ in Lal Quarter Market,
Krishna Nagar, East Delhi which is a prominent market in the
East Delhi. The business was earlier being carried on by the
father of the deceased and after his death, the deceased
carried on the business. It has also come in evidence that the
FAO No. 116/1998 Page 4 of 10
business was closed down after the death of the deceased as
there was no other male member in the family of the deceased.
The deceased was survived by his mother who is not educated
and four sisters, out of which two were unmarried at the time of
his death. It has also come in evidence that the deceased had
three employees out of which one was sitting on the pillion with
him at the time of his death.
10. Appellant No.1 has categorically stated in the witness box
that the deceased used to give her Rs.6,000/- for household
expenses after keeping his pocket money and other expenses.
PW – 2 as well as PW-3 also corroborated the statement of PW-1
with respect to the business as well the income of the
deceased. It is well known that the profit is very high in the
business of tent and electric store. The learned Tribunal,
therefore, clearly erred in drawing the parity of young,
educated, smart and handsome boy running his own business
with an unskilled labourer. I find the analogy to be irrational
and unjustified.
11. The Learned counsel for the respondent submits that the
deceased was not paying Income Tax and, therefore, the
income of the deceased cannot be taken to be more than the
maximum non-taxable limit. On the other hand, the counsel
for the appellant submits that non-payment of Income Tax may
invite violation of Income Tax law but cannot be a ground for
denying just compensation to the appellant. The learned
FAO No. 116/1998 Page 5 of 10
counsel for the appellant refers to and relies upon the Division
Bench Judgment of the Allahabad High Court in Oriental
Insurance Company Limited vs. Bhupender Kaur, 2004
ACJ 1130. In that case, the deceased was not paying the
Income Tax. However, the Court held that it would not nullify
the statement of the wife of the deceased that she was actually
receiving Rs.10,000/- to Rs.12,000/- per month from the
deceased. The ratio of the above case is applicable to the
present case. The learned counsel for the respondent refers
to and relies upon the judgment in the case of Bijoy Kumar
Duggal Vs. Bidhyadhar Dutta – 2006 (3) SCC where the
appeal for enhancement was dismissed in the absence of
documentary proof of the income.
12. Considering the evidence on record, I am of the view that
there is sufficient evidence on record that the deceased was
carrying on the business of tent and electric store in the
prominent market of East Delhi, he had three employees and
he used to give Rs.6,000/- to his mother for household
expenses. I, therefore, take the income of the deceased to be
Rs.3,000/- at the time of his death. This income would have
increased with the passage of time and computing future
prospects as per the principle laid down by the Apex Court in
the case of Sarla Dixit vs. Balwant Yadav, 1996 SCC 1274,
the average income of the deceased would have been
Rs.3,000/- + Rs.6,000/- divided by 2 = Rs.4,500/-. Out of this,
FAO No. 116/1998 Page 6 of 10
the appellant would have spent 1/3rd on himself and the loss of
dependency on the appellants is computed at Rs.3,000/- per
month.
13. The Learned Tribunal has applied the multiplier of 12
without giving any reason. The deceased was aged 22 years
and his mother was aged 44 years at the time of the death of
the deceased. Taking the age of the mother, Second Schedule
provides the multiplier of 15. The counsel for the appellant
refers to and relies upon the judgment of the Apex Court in the
case of U.P. State Road Transport Corporation & Ors. Vs.
Trilok Chandra & Ors. – (1996) 4 SCC 362 where the Apex
Court has held that maximum multiplier could go up to 18 and
Second Schedule be used as a guide in determination of
compensation. Learned counsel for the appellant also refer to
the Division Bench Judgment of this Court in the case of Rattan
Lal Mehta vs. Rajinder Kapoor, 1996 ACJ 372 where it has
been held that it is open to Courts/Tribunals to apply table in
the Second Schedule in respect of accidents which occurred
prior to the 1994 amendment of the Motor Vehicle Act. The
learned counsel for the respondent refers to and relies upon
the judgments in the cases of Managing Director, TNSTC vs.
K.I.Bindu, [(2005) 8 SCC 473], U.P. State Road Transport
Corporation vs. Krishna Bala, [(2006) 6 SCC 249] and
New India Assurance Co. Ltd. vs. Kalpana, [(2007) 3 SCC
538] in which multiplier lower than one provided in the Second
FAO No. 116/1998 Page 7 of 10
Schedule of Motor Vehicles Act, 1988 has been adopted to
compute the compensation.
14. In the present case, the Second Schedule provides the
multiplier of 15 according to the age of the mother of the
deceased. However, considering the recent judgments of the
Hon’ble Supreme Court where the lower multiplier than the one
provided in the Second Schedule has been applied, I adopt the
multiplier of 13. The total loss of dependency is assessed at
Rs.4,68,000/- (Rs.3,000 x 12 x 13).
15. The counsel for the appellant also refers to and relies
upon the judgment in the case of Virender Singh vs. Anand
Prakash, 2007 Rajdhani law Reporter 532 in which it was
held that the claimants are entitled to just compensation which
can be higher than the amount claimed. There is no dispute
on this preposition of law.
16. With respect to the compensation for love and affection
and loss of estate, the learned Tribunal has awarded
Rs.10,000/- and Rs.2,500/- respectively. No reason or
justification has been given. In judgment of the case of
United India Insurance Co. Ltd. vs. Sulochana, III (2007)
ACC 50 (DB), Madras High Court has awarded Rs.25,000/-
each to mother and daughter towards love and affection and
Rs.50,000/- towards loss of consortium. I award Rs.10,000/-
towards love and affection to appellant No.1 and Rs.5,000/-
towards love and affection to each of appellants No. 2 to 5.
FAO No. 116/1998 Page 8 of 10
17. The appellant is entitled to compensation of Rs.5,00,000/-
(Rs.4,68,000/- + Rs.10,000/- + Rs.5,000/- + Rs.5,000/- +
Rs.5,000/- + Rs.5,000/- + Rs.2,000/-).
18. The appeal is allowed and the compensation is enhanced
from Rs.1,58,500/- to Rs.5,00,000/-. The learned Tribunal had
awarded interest @12% from the date of filing of the petition till
after one month of the award and 14% thereafter. I do not
disturb the interest on Rs.1,58,000/- as it is in the conformity
with bank interest rates at that time. However, on the
enhanced amount now awarded, the respondent shall be
entitled to the interest @7.5% from the date of filing of the
petition, that is, 27th January, 1994 till the date of payment.
The share of the appellants in the enhanced amount shall be as
under:-
Appellant No.1 : 80%
Appellants No.2 to 5 : 5% each.
19. The enhanced amount along with interest be deposited
by the respondent with the learned Tribunal within 30 days.
The learned Tribunal is directed to release 30% of the share of
appellant No.1 to her and remaining 70% of the amount be kept
in a fixed deposit for a period of ten years on which no loan,
advance or withdrawal be permitted without the prior
permission of the learned Tribunal but the periodical interest
be permitted be released to the appellants. With respect to
shares of appellants No.2 to 5, 50% of their share be released
FAO No. 116/1998 Page 9 of 10
to them and remaining 50% of their share be kept in fixed
deposit for a period of five years with restriction on withdrawal,
loan and advance as above in the case of appellant No.1. The
learned Tribunal shall first release the cheques towards the
amount to be kept in fixed deposits and the remaining amount
be released only after the original fixed deposit receipts with
proper endorsements are shown to the learned Tribunal and
the copies of FDRs duly attested by the Bank are placed on
record of the learned Tribunal.
J.R. MIDHA, J.
MARCH 31, 2009
aj
FAO No. 116/1998 Page 10 of 10