New Delhi Municipal Corporation ... vs Kamlesh Kumari
1990 Latest Caselaw 335 Del

JUDGMENT

Mahesh Chandra, J.

(1) This judgment would dispose of two F.A.Os namely No. 88 of 1979 and 89 of 1979, which are directed against the composite award dated 8th December, 1979 of Motor Accident Claims Tribunal Delhi given respectively in Claim No. 21 of 1978 (Old No. 130 of 1973) entitled Smt. Kamlesh Kumari & others v.N.D.M.C. and others and claim No. 38 of 1978 (Old No. 129 of 1973) entitled Ganesh Datta and another v N D M C and others. Both the claims were disposed of by a composite judement' of 8th December, 1978. The first mentioned case had arisen due to the death of one Sarwan Kumar while second mentioned claim and arisen due to death of Subash Chander Younger brother of Sarwan Kumar. These appeals have been filed by N.D.M.C., the owner of the truck which was involved in the accident and its driver. The claimants in respective claims have also filed cross objections in both these appeals. The cross-objections in F A O No 88 of 1979 have been registered as C.M. No. 164 of 1979 while cross-objection in P.A.O. No. 89 of 1979 have been registered as C.M. No. 180 of 1979 and as such these cross-objections are also proposed to be disposed of by this judgment

(2) I have heard the learned counsel for the parties and have gone through the lower court files and after giving my considered thought to the matter before me I have come to the following findings : FACTS giving rise to these appeals are that on the night of 3rd or 4th November, 1972 Sarwan Kumar was driving a scooter while his younger brother Subhash Chander was sitting on its pillion seat at about 00.30 hrs at night and when they reached the place of accident, truck No. Dlg 2230 driven by appellant No. 2 Hari Chand came from opposite direction and dashed against the scooter and thereafter hit the electric pole and in the process Sarwan Kumar died on the spot and Subhash Chander died on reaching the hospital. The accident is not denied by the appellants. Likewise the factum of death of Sarwan Kumar on spot and Subhash Chander in the hospital have also not been denied. There is no despute as to the respective ages of the deceased persons Sarwan, Kumar has been held to be 33 years old by the Tribunal and Subhash Chander to be 30 years old and this fact has not been disputed before me by the learned counsel for appellants. Similarly it has not been disputed before me that Sarwan Kumar was working as Udc in Naval Hqrs and was drawing a salary of Rs. 382.35 on the date of accident while Subhash Chander was working as cashier in Oberoi Intercontinental, New Delhi at a salary of Rs. 360.00 per month. The dependency of the respective claimants has not been disputed before me. It has not been challenged that Kamlesh Kumari Gilani, respondent No. 1, is widow of the deceased Shri Sarwan Kumar Jyoti Gilani, and Kumari Aarti are minor daughters and Master Deepak Gilani is the son of the said deceased and Ganesh Datta and Smt. Shanti Devi are aged parents of the deceased persons.

(3) One most important question which has to be considered by this court is whether the truck was being driven rashly and negligently. The learned Tribunal has given a finding that the truck was being driven rashly and negligently and accident occurred due to rash and negligent driving by appellant No. 2. Learned counsel for N.D.M.C. has challenged this finding. I do not find much substance in the submission of the learned counsel for the N.D.M.C. The lone eye witness has been examined as Public Witness . 7. He is Orn Prakash,a jhuggi dweller of nearby place who was coming on a cycle at the time of accident after closing his shop in Kamal Cinema and has observed the entire occurrence. It is categorical stated by him that 'the Ndmc truck came from IN a side on the diversion road and scooter was coming from Lodi Colony side...... There was up and down road about 50 feet wide. The truck came at a very fast speed. It did not blow any horn. The truck came on the wrong side of the road and knocked the scooter which was coming from the opposite direction and scooter was dragged for about 15-20 yards. The truck hit the electric pole as a result the pole was broken. The truck was damaged on its front side and one of the boys was run over by the wheel of the truck while the other was dragged along with the scooter by the truck. Both the boys-one dying at the spot while the other was removed in a very precarious condition to the hospital in a private car......I accompanied the police to the spot of occurrence.' There is nothing in his cross-examination which has been brought out by the counsel for the appellant in the lower court which belies his testimony in chief. He has categorically stated in the first line of cross-examination that his place of residence was at a distance of about one furlong from the point of occurrence. It is also stated that there was no other pedestrian at that time on spot. The suggestion by the learned counsel for Ndmc that these was no light has been categorically denied by this witness in the cross-examination There was no other eye witness of the occurrence, Ndmc has examined R.W. 1 and he is Hari Cand, the driver but there is nothing in his testimony which belies the testimony of Public Witness . 7. Public Witness . 7 is an independent witness and has no axe to grind, whereas Hari Chand is an interested witness to ward off the liability. Hari Chand had admitted during cross-examination that he was found guilty by the criminal court as well in criminal case arising out the accident. I have been taken through the plan prepared by 1.0. which is Ex. Public Witness . 10/1. It corroborates the story given by Public Witness . 7. Even otherwise the accident speaks for itself and the suggestion of the learned counsel for N.D.M.C. that scooter had struck on the rear side of the truck is not established by the evidence on record. There is one other important factor which cannot be lost sight of i.e. R.W. 1 Hari Chand has stated that one beldar was sitting along with him in the truck on the front seat but the said beldar has not been examined as a witness for reasons best known. The very fact that the truck first hit the scooter and thereafter hit the electric pole with such a force as to break the pole itself also shows the rashness of the speed of the truck. There is hardly anything to suggest any contributory negligence as there is not even an iota of evidence of contributory negligence of the scooter driver. Considering all these facts the finding of the learned Tribunal that the accident arose due to rash ond negligent driving of the truck driver Hari Chand is confirmed.

(4) Next submissions of the learned counsel for the Ndmc and claimants are on the question of quantum of compensation and interest. It is contended on behalf of the Ndmc that the amount allowed by way of compensation is somewhat at higher side. It has been submitted on behalf of the claimants that considering the fact that both the parents of the deceased persons are alive respectively at the ages of 78 and 72 and the accident took place way back in 1972, i.e. 18 years ago when one of the deceased was 30 years and the other was 33 years, the multiplier of 20 chosen by the Tribunal is on the lower side and should be no less than 28, and the compensation should be worked out accordingly. It has further been submitted by the learned counsel for the claimant that no interest has been allowed to the claimants the date oF filing of the petition whereas it has been submitted by the counsel for the Ndmc that the Ndmc has made the payment immediately on passing of the award by the Motor Accident Claims Tribunal and as such no interest should be allowed. Lastly it is submitted on behalf of the claimants that the dependency has been placed at Rs. 382.30 in the case of Sharwan Kumar and Rs. 360.00 in case of Subash Chander which was too-much on low side and it should be raised. In this aspect of the matter it has further been submitted that the deceased Sarwan Kumar would have become a Gazetted Officer in course of time and as such would have been entitled to much higher emoluments. It has similarly been submitted by Mr. Mehta. learned counsel for the claimants that in any event after the death of the deceased Sarwan Kumar, the pay scales of Central Govt. Employees have been revised twice one in consequence recommendation of Third Pay Commission 1.1.1973 and second in consequence of the recommendation of the Fourth Pay Commission on 1st January 1986 and these facts could not have been anticipated at that time when award has been passed and the compensation may be enhanced accordingly. It has further been submitted by Mr. Mehta that Subash Chander deceased also had bright prospects and to fix dependency at Rs. 360.00 was also on the lower side. On this aspect of the matter Mr. Nayyar learned counsel for the Ndmc has submitted that keeping in view the uncertainties of life, learned Tribunal has not incorrectly placed the dependency at Rs. 382.00 and Rs. 360.00 in the case of Sarwan Kumar and Subash Kumar respectively and in any event there is no case of upward revision thereof.

(5) Considering the respective submissions by the learned counsel for the parties on various aspects of the matter and further considering that different multiplier has been accepted in different cases by different courts, which has varied between 15 to 28, and also considering that the parents of the deceased are still alive at the age of 78 years and 72 years multiplier of 20 is certainly on lower side. Our own High Court in a recent judgment reported .as Elizabeth Mathew & Ors. v. Vasdev & am. 1990 Acj (1) 461 adopted 28 as the multiplier in the case of a deceased who was 30 years of age and a Government servant at the time of his death, 'while in yet another judgment of this court reported as Vidyawanti and Others v. Municipal Corporation of Delhi and Others, 1989 Acj (1)317 where the deceased died at the age of 311 years, the multiplier of 261- was adopted. Considering these rulings and the facts that Sarwan Kumar was 33 years old and Subash Chander was 30 years old at the time of their respective deaths and both were in the prime of their youth and were properly established in life in sufficiently respectable services, it would be appropriate to place the multiplier at 25 and the award of the Tribunal is liable to be modified to that extent and I hold accordingly.

(6) As regards the element of interest it is uniform view of the courts including the Supreme Court that in cases involving payment of compensation arising out of tort interest should ordinarily be paid, I am of the view that in view of that situation the petitioners are entitled to some interest in as much as the liability of Ndmc including appellant No. 2 the driver had arisen immediately on the occurrence of the accident, interest in this background cannot be denied to claimants for no fault of theirs. Considering the conduct of Ndmc in making the payment very shortly after making of the award, interest of justice would be met if the Ndmc is directed to pay interest @6 % per annum from the date of filing of the respective petitions till the date of payment on amount of compensation granted by the Tribunal as enhanced by this court.

(7) Coming to the calculation of dependency it would have be presumptuous to assume that Sarwan Kumar would have necessarily become a Gazetted officer by the time he retired. It has been submitted by Mr. Mehta that next promotion of Sarwan Kumar from the post of Udc would have been that of Assistant and next to next as Assistant Civil (Staff) Officer and finally as Civil Staff Officer. It is submitted by him that on date all Civil Staff Officers are such as have been promoted from the ranks of UDC. On a query by this court Mr. Mehta could not confirm if all the UDCs till date in the service in Naval Hqrs. have become Civil Staff Officers. While it can be accepted that all the Civil Staff Officers would be from amongst promoted UDCs but it is difficult to accept that all UDCs would always become Civil Staff Officers and it is not urged that promotion is only by seniority and not on seniority-cum-merit. No service record of Sarwan Kumar has been placed on record and even otherwise it would be too presumptuous to work out the chances of promotion of deceased Sarwan Kumar. Furthermore element of chance and uncertainty in promotions cannot be ruled out. Similarly in the case of Subash Chander, deceased while chances of promotion could be there it cannot be accepted as to which heights he would have reached had he been alive today. As regards submissions on account of likely increases in the salary of Sarwan Kumar in consequence of report of Third and Fourth Pay Commission, learned counsel for the appellant has drawn my attention to Seeta Laxshmi Krishnan and Others, v. Gian Parkash and another, 1989 Acj (II) 887. No doubt judicial notice can be taken of the two revisions in consequence of the Third and Fourth Pay Commission but element of uncertainty of life and chances also cannot be lost sight of. Further aspect which cannot be lost sight of is that Smt. Kamlesh Kumari, widow of the deceased Sarwan Kumar has been employed on compassionate grounds as Ldc and has now been promoted at the age of 43 years as Udc in the Naval Hqrs., and this aspect cannot be altogether ignored. Learned counsel for the claimants has drawn my attention to New India Assurance Co. Ltd. v. Angoori Devi and others 1987 Acj 942, none the less the factor that Kamlesh Kumari got this employment owing to the circumstances culminating in the death of Sarwan Kumar due to rash and negligent driving of the appellant No. 2 Hari Chand is certainly relevant and the courts cannot altogether be oblivious of this fact that the employment has come to the hands of Kamlesh Kumari on account of death of Sarwan Kumar on compassionate grounds. There is another important element which cannot be brushed aside lightly and that lies in lumpsum payment of compensation which comes to the hands of the dependants. If Sarwan Kumar/Subash Chander had remained alive and had continued to serve, the amounts could not have come except bit by bit. Considering the submissions made before me and my discussion above, I do not think the dependency calls for any upward revision in either of the cases.

(8) No other point has been urged before me.

(9) In view of my discussion and findings above, I do not find any force in the appeals of the Ndmc which are dismissed. However, cross-objections are partly allowed to the extent indicated above and the awards of the Accident Claims Tribunal in both cases are modified to that limited extent. The multiplier would be 25 as against 20-accepted by the Tribunal and amount of compensation would carry [email protected] 6% per annum from the date of the a application till the date of payment and NDMC-and appellant No. 2 are directed to deposit the balance amount of enhanced compensation in both the cases together with interest from the date of application till the date of payment within four weeks hereof. Parties to bear their own costs. Enhanced compensation in case of Sarwan Kumar shall be apportioned between parents on one hand and widow and children on the other in the same ratio as ordered by the Tribunal. The bank guarantee stands discharged.