3
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO.No.350/1997
Date of Decision: 21st August, 2009
%
KUNTI DEVI ..... Appellant
Through : None.
versus
BALDEV SINGH ..... Respondent
Through : Dr. Sarbjit Sharma, Adv.
for R-2.
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 (Oral)
1. The appellants have challenged the award of the
learned Tribunal whereby compensation of Rs.1,92,000/- has
been awarded to the appellants. The appellants seek
enhancement of the award amount.
2. The accident dated 4th November, 1991 resulted in the
death of Ashok Kumar. The deceased was survived by his
widow, one son, one daughter and parents who filed the
claim petition before the learned Tribunal.
3. On 4th November, 1991, the deceased was driving his
two-wheeler scooter on G.T. Road near Village Bakoli, Jai
Bharat Dharam Kanta when the Chandigarh Transport
FAO.No.350/1997 Page 1 of 6
Undertaking bus bearing No.CH-01G-5085 came from behind
and hit the deceased resulting in his death.
4. The deceased was a businessman earning Rs.3,434/-
per month. The deceased was Income Tax payee. As per
the Income Tax Return – Ex.PW2/3, the income of the
deceased for the year 1991-92 was Rs.41,212/-. After
deduction of Rs.10,000/- towards the investment made by
the deceased, the taxable income was Rs.31,210/-. The
learned Tribunal took the income of the deceased to be
Rs.31,210/- and 50% was added towards the future
prospects and the income of the deceased was taken to be
Rs.3,900/- per month. 1/3rd was deducted by the learned
Tribunal towards the personal expenses of the deceased and
the multiplier of 15 was applied to compute the loss of
dependency at Rs.3,74,400/-. Rs.2,000/- has been awarded
towards funeral expenses, Rs.2,500/- towards loss of estate
and Rs.5,000/- towards loss of consortium. The total
compensation computed by the learned Tribunal is
Rs.3,84,000/-. The learned Tribunal held the deceased to be
contributory negligent to the extent of 50% and, therefore,
the compensation computed has been reduced by 50% and
Rs.1,92,000/- has been awarded by the learned Tribunal.
5. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal:-
(i) The driver of the offending bus alone was
negligent and, therefore, the finding of the
FAO.No.350/1997 Page 2 of 6
contributory negligence of the deceased is notcorrect.
(ii) The income of the deceased be taken to be
Rs.5,151/- per month as per Income Tax Return –
Ex.PW2/3.
(iii) The personal expenses of the deceased be
reduced from 1/3rd to 1/4th considering that the
deceased left behind five dependents.
(iv) The compensation be awarded for loss of love and
affection.
6. With respect to the finding of contributory negligence,
the learned Tribunal has relied upon the statement of driver
of the bus who appeared as RW-1 and deposed that there
were two parallel roads in the same direction from Sindhu
Border to Delhi and the deceased was moving on one road
while the bus was moving on the main road running along.
RW-1 further deposed that the scooterist suddenly changed
the lane and came in front of the bus due to which the
accident occurred. The learned Tribunal, therefore, observed
that the deceased was negligent in suddenly changing the
lane and coming in front of the bus and, therefore, was
contributory negligent.
7. The learned counsel for the appellant has referred to
and relied upon the written statement of the driver as well as
the owner of the bus in which it has been stated that the
scooterist came on the wrong side on the other lane all of a
FAO.No.350/1997 Page 3 of 6
sudden to cross over to the other lane and came in front of
the bus as a result of which he struck his scooter against the
bus on the right side of the bumper meaning thereby that
the scooterist was coming from the opposite direction.
However, the driver of the bus took the contradictory stand
in the witness box. The driver of the bus appeared as RW-1
and deposed that the scooter and bus were moving in the
same direction but in different lanes and the scooterist
suddenly changed the lane and came in front of the bus. In
view of the contradictory stand taken by the driver in the
written statement and in the witness box, RW-1 is unworthy
of credit and his statement cannot be relied upon.
8. Chetan Sharma is the independent eye-witness of the
accident who appeared as PW-3 and deposed that the
offending bus hit the deceased from behind. PW-3 further
deposed that the offending bus was being driven at a fast
speed and rashly and negligently. The site plan prepared by
the police was placed on record before the learned Tribunal
which shows that the accident occurred on the extreme left
side of the road. The dead body of the deceased was found
at Point ‘A’, the scooter was found lying at Point ‘B’ and bus
was found lying at Point ‘C’. There is considerable distance
between Point ‘A’, ‘B’ & ‘C’ meaning thereby that the
offending bus must have been at a very high speed and,
therefore, impact of the accident was so grave that it threw
the scooter and the deceased at a considerable distance.
FAO.No.350/1997 Page 4 of 6
From the testimony of independent witness, PW-3 and the
site plan prepared by the police, the negligence of the
offending bus is sufficiently proved. It is, therefore, held that
the accident occurred due to the negligence of the driver of
the offending bus. The finding of the learned Tribunal
imputing 50% contributory negligence to the deceased is,
therefore, set aside.
9. The deceased was aged 29 years at the time of the
accident. The income of the deceased has been taken by the
learned Tribunal to be Rs.3,900/- per month. The learned
Tribunal deducted 1/3rd towards the personal expenses and
applied the multiplier of 15 to compute the loss of
dependency at Rs.3,74,400/-. According to the recent
judgment of the Hon’ble Supreme Court in the case of Sarla
Verma Vs. Delhi Transport Corporation, 2009 (6) Scale
129, the personal expenses of the deceased who has left
behind five dependents is to be taken as 1/4th and the
appropriate multiplier at the age of 29 years is 17. Following
the aforesaid judgment, the personal expenses of the
deceased are reduced from 1/3rd to 1/4th and the multiplier is
enhanced from 15 to 17. Taking the income of the deceased
to be Rs.3,900/- per month, deducting 1/4th towards the
personal expenses of the deceased and applying the
multiplier of 17, the loss of dependency of the appellants is
computed to be Rs.5,96,700/- (Rs.3,900 x 3/4 x 12 x 17).
The learned Tribunal has awarded Rs.2,000/- towards funeral
FAO.No.350/1997 Page 5 of 6
expenses, Rs.2,500/- towards loss of estate and Rs.5,000/-
towards loss of consortium. However, no compensation is
awarded towards loss of love and affection. Rs.10,000/- is
awarded towards the loss of love and affection. The total
compensation is computed to be Rs.6,16,200/- (Rs.5,96,700
+ Rs.2,000 + Rs.2,500 + Rs.5,000 + Rs.10,000).
10. The appeal is allowed and the award amount is
enhanced from Rs.1,92,000/- to Rs.6,16,200/-. The learned
Tribunal has awarded interest @ 12% per annum which is not
disturbed on the original award amount of Rs.1,92,000/-.
However, on the enhanced award amount, the rate of
interest shall be 7.5% per annum from the date of filing of
the petition till realization.
11. The enhanced amount along with interest be deposited
by respondent No.2 with UCO Bank A/c Kunti Devi, Delhi High
Court Branch, New Delhi.
12. The order with respect to the disbursement of the
award amount shall be passed on the next date of hearing
after examining the appellants. The appellants are directed
to remain present in the Court on the next date of hearing.
13. List for directions on 13th October, 2009.
14. Copy of this order be given ‘Dasti’ to learned counsel
for the parties under the signature of Court Master.
J.R. MIDHA, J
AUGUST 21, 2009/aj
FAO.No.350/1997 Page 6 of 6