O.K. Ayyappan And Ors. vs Daya Singh And Ors.
1989 Latest Caselaw 372 Del

JUDGMENT

Malik Sharief-ud-Din, J.

1. The appellants are aggrieved of the quantum of compensation awarded to them by the Motor Accident Claims Tribunal, Delhi, by its order dated 19th September 1979. The quantum of compensation awarded is Rs. 16,200/-.

2. This claim arose out of an accident dated 19th December 1971 when the deceased U.A. Kumaran aged about 24 years met with an accident. The deceased on the day of accident was traveling in the mini bus No. DLP 4872 from ring road to his residence. Allegedly, since the bus was over-crowded the deceased Was standing in the bus. It is alleged that the bus was being driven by its driver at a very fast speed and when it reached yamuna bridge a tempo bearing No. DLP- 911 was found going ahead of the bus. The bus driver tried to overtake the tempo but the tempo driver refused to give way resulting in a sort of a race between the two vehicles as a result of which the deceased fell out of the bus and was trampled over and crushed by the aforesaid tempo. The allegation is that the driver of both the vehicles were rash and negligent which resulted in this unfortunate accident. On merits, the stand of the respondents was that of denial and respondent No. 2 further pleaded that the deceased was negligently hanging at the door of the bus. It is suggested that, in fact, the deceased who was negligently standing on the door of the bus was hit by a overloaded tempo as a result of which he fell down and met with this accident.

3. The Tribunal on an assessment of evidence led in respect of the issues framed came to the conclusion that this accident was caused due to rash and negligent driving by both the offending vehicles and the extent of negligence that was apportioned was in the ratio of 60% for the bus driver and 40% for the tempo driver. The Tribunal further came to the conclusion that there was a contributory negligence on the part of the deceased as the deceased, according to the Tribunal, could not have fallen and met with the accident if he was standing in the bus. On the facts and circumstances of this case, the Tribunal inferred about the contributory negligence of the deceased, though Mr. Sharma, appearing for the respondents, frankly admitted that there is no evidence to the effect that there was a contributory negligence on the part of the deceased. He further urges that the Contributory negligence was rightly inferred as the deceased was standing on the door of the bus. In my view there is a simple averment by the respondent No. 2 that the deceased was standing on the door and was hit by the overloaded tempo resulting in his fall and the accident. This averment was not substantiated by any evidence. It is, in my view, therefore, wrong to draw an inference that there was any contributory negligence on the part of the deceased. The only proper and appropriate approach, in my view, is to believe that; the bus was over-crowded and the deceased was also standing with the other passengers in the bus. The worst inference that can be drawn is that he might have been standing somewhere near the open door of the bus.

4. In so far as the apportionment of the liability between the two offending vehicles and their drivers is concerned no grievance has been made against it. The only grievance of the appellant is that the compensation awarded is illusory and that it does not represent the true measure of dependency of the appellants upon the deceased. The deceased was 24 years of age when he met with this accident and his monthly income from the evidence of the appellants themselves was Rs. 300/-. The deceased was serving in Delhi while the appellants who are his parents are residing somewhere in South. The Tribunal felt that the dependency of the appellants would be about Rs. 150/- per month. This was multiplied by 12 into 15. A multiplier of 15 was adopted on the basis of a long discussion in the judgment. The total compensation was assessed in this manner at Rs. 27,000/-. A deduction of 20% was made on account of lumpsum payment and thereafter a deduction of 25% was made on account of the contributory negligence reducing the amount to Rs. 16,200/-. After giving my careful consideration to the arguments advanced by the learned Counsel for the parties, I may at once point out that the deduction on account of lumpsum payment is not admissible and since I have held that there was no contributory negligence, 25% deduction on that account is also not admissible.

5. The real question to be determined in this case is as to the multiplier that could appropriately be applied to the present case. The Tribunal has observed that the deceased was 24 years old on the date of the accident and would have married within the next 2-3 years and in this way the dependency of the appellants would have decreased; This, of course, is one of the recognised norms which has to be taken into consideration, but one cannot also totally forget the age of the dependents at the time of the incident. In 1978 the age of the dependent mother and father was respectively then as 48 and 50 and, I am told by the learned Counsel for the appellants, that they are still living even after near about more than 17 years of the entitlement of this claim. In my view, therefore, on the facts and circumstances of this case the Tribunal should have applied a multiplier of 18. In so far as the dependency is concerned, the finding of the Tribunal is the only appropriate finding. This would thus be 150 x 12 x 18. This will make a total amount of Rs. 32,400/-. Thus, the appellant shall be entitled to receive total compensation of Rs. 32,400/- and the ratio of liability of respondents .1,5 and 6 would be Rs. 19,400/- and that of respondents No. 2,4 and 6 Rs. 12,960/-. In the case of liability of respondents Nos 1, 5 and 6 the liability of the insurance company would be only Rs. 5000/- against the compensation of Rs. 19,400/-. The Tribunal while passing the award had also awarded interest at the rate of 6% per annum from the date of the filing of the petition till the date of realisation. I am told that the amount awarded by the Tribunal has already been paid. The remaining amount of Rs. 16,200/- shall now be paid to the appellants who shall be entitled to get interest on this amount at the rate of 9% per annum from the date of filing of the claim till the date of the final realisation. The unpaid amount of compensation shall be deposited in the Claims Tribunal within two months from today. The appeal is accordingly allowed with the aforesaid modifications in the award.