Delhi High Court High Court

Sumitra & Ors vs Up State Roadways Tpt.Corpn. & Anr on 31 March, 2009

Delhi High Court
Sumitra & Ors vs Up State Roadways Tpt.Corpn. & Anr on 31 March, 2009
Author: J.R. Midha
*       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