Manbhavti And Ors. vs Surete And Ors.
1993 Latest Caselaw 255 Del

JUDGMENT

Ms. Usha Mehra, J.

1. Manbhavti and Ors. have come up in appeal under Section 110-D of the Motor vehicle Act (hereinafter called the 'Act') against the award dated 27th October, 1980 passed by the Motor Accident Claims Tribunal, Delhi (hereinafter called the Tribunal) awarding a sura of Rs. 32,400/- with costs and interest in favor of the appellants.

2. The award has been assailed, inter alia on the ground, that the Tribunal illegally and wrongly did not permit the appellants to amend their claim petition which amendment was sought in May, 1975. The claim petition was filed by the petitioner claiming a compensation of Rs. 60,000/- but subsequently in May, 1975 the appellants moved an application for amendment of the claim petition which amendment though allowed vide order dated 12th November, 1975 but with a rider that the claim amount would not be changed and that it will remain Rs. 60,000/-. Besides assailing this order, the award has also been assailed on the ground of inadequacy of compensation.

3. Admitted facts of the case are that the deceased Bishamber Dayal was urinating in a ditch on the kacha side of road when the bus No. D.L.P. 874 which was being driven by respondent No. 1-Shri Surete, in an extremely rash and negligent manner ran over the deceased, as a result of which he was crushed and killed at the spot. It is alleged that deceased Bishamber Dayal at the time of his death was 43 years old and having a monthly income of Rs. 1,000/-. He was practicing as 'Vaid' and was also performing the functions of a Pandit. Respondents 2 and 3, i.e. M.C.D. and the General Manager, DTC, were the owners of the above said bus and that Shri Surete was in their service. The deceased left a widow and six children (three daughters and three sons), it is also an admitted fact on record that Shri Surete was proceeded ex parte. Written statement only on behalf of the DTC and M.C.D. was filed in which the only defense taken was that the driver had taken the bus to his village Darya Pur unauthorisedly, and therefore, DTC was not liable for his act. Evidence was led and it was proved that the respondents admitted the accident but took the plea that Shri Surete had taken away the bus unauthorizedly and that too after the completion of his duty, and therefore, they were not liable. The question taken into consideration was whether this accident was caused by respondent No. 1 in the discharge of his duties or not? The Tribunal after evaluating and appreciating the evidence came to the conclusion that Shri Surete, respondent No. 1 was driving the bus in the discharge of his duties, and therefore, held respondent No. 2 liable for the act of respondent No. 1. I see no reason to disagree with the observation of the Tribunal in this regard nor the respondents have been able to point out any infirmity in this part of the discussion of the Tribunal on issue No. 4. Though the driver Shri Surete did not file the written statement but he appeared as a witness (RW 3) and denied that he was driving the offending bus at the time of accident. According to him he left the bus at the depot and went to his house which fact is belied from the photographs taken at the site as well as from the FIR lodged in which the number of the bus is mentioned. The photographs also show the offending bus to be present at the site of the accident, coupled with the testimony of the eye witnesses, the Tribunal rightly disbelieved the version given by respondent No. I and of the conductor of the bus. The Counsel for the respondent was not in a position to place anything on record by which the observation of the Tribunal could be held to be contrary to record. Therefore so far as issue Nos. 2 and 4 are concerned the respondent had not been able to assail the same.

4. The other question which has been raised by the respondent and against which the appellants have also come in appeal is the fixation of quantum of compensation i.e. issue No. 3. The Tribunal took the age of the deceased as 50 years. He discarded the testimony of all the witnesses including that of the wife of the deceased simply on the ground that the deceased had ataractic in both the eyes and the ataractic, according to the Tribunal is usually found when a person is of the age of 50 years or above. The Tribunal has placed reliance on the testimony of P.W. 12 to come to the conclusion that the deceased was 50 years old. But the perusal of the evidence of Manghe Ram, P.W. 12, shows that he had in no uncertain words stated that the deceased was 44 years old at the time of accident. He nowhere mentioned that the deceased was 50 years at the time of the accident. The statement of P.W. 12 was recorded in 1977. In cross examination Manghe Ram, P.W. 12, stated that on the day he made the statement i.e. in April, 1977 he was 64 years and according to him the deceased was 10 years younger to him. The accident took place in 1971. So apparently the deceased would be around 46 years old at the time of his accident, tt is not understood as to how the Tribunal came to the conclusion that Manghe Ram had stated that the age of the deceased was 50 years at the time of the accident. Similarly, the Tribunal relying on the testimony of P.W. 5 came to the conclusion that the deceased was 50 years old. That again appears to be nut born out from the record. According to P.W. 5 on the day when he made the statement i.e. 1973, the wife of the deceased was about 40-42 years old According to his approximation the age difference between the deceased and his wife was 8 to 10 years. That means in 1973 according to P.W. 5 the deceased would have been 48 years. The accident is of 19 1. So apparently according to the version of PW 5 also the deceased would have been between 45-46 years old and that is precisely the age given by all other witnesses. Therefore the Tribunal, to my mind fell in error in arriving at the conclusion that the deceased was 50 years old. Rather as discussed above, neither from the testimony of P.W. 5 nor from the testimony of P.W. 12 it could be inferred that the deceased was 50 years old at the time of the accident. Merely because the deceased had ataractic in his eyes, it cannot be presumed that he was 50 years old. To my mind, the Tribunal had no cogent reason to disbelieve the testimony of Shn Jeet Ram, P.W. 5, a resident of the same village, of Shri Manghe Ram, P.W. 12, Rajinder Prasad P.W. 16, all of whom stated in one voice that the deceased was between the age of 42-45 years. Therefore relying on the testimony of these witnesses I hold that the Tribunal went wrong in arriving at the age of the deceased as 50 years. In fact from the overwhelming evidence which has come on record the age of the deceased should have been fixed as 45 years at the time of his death. So far as the dependency income is concerned the Tribunal has rightly fixed the same to be Rs. 500/- p.m. from his practice as Vaid and Pandit.

5. The question for consideration is what could be the dependency income ? The Tribunal arrived at the conclusion that the monthly income of the deceased was around Rs. 300/- per month. The son of the deceased Rajinder Prasad, appearing as P.W. 16 stated that the deceased used to earn about Rs. 1,000/- per month and was also earning some amount from tuition. He used to give Rs. 1,000/- per month to his wife as expenses for running the household. Though there is no cross examination on this part of his testimony, still it cannot be interred in the absence of any documentary evidence that the deceased was earning Rs. 1,000/- per month. But at the same time we cannot ignore the large number of deceased's family members who were dependent upon him namely his three daughters, three sons and a wife. Such a large family could not have survived unless the deceased was earning sufficient amount to feed these seven mouths. Therefore, I am in agreement with the observation of the Tribunal that the deceased was earning Rs. 500/- per month from his practice as Vaid. However Tribunal ignored deceased earning as Pandit by doing puja as well as from tuitions as stated by his son. I see no merits in the reasoning of the Tribunal when he held that the deceased was deducting Rs. 200/- for his personal expenses. Nothing has come on record to indicate that the deceased was extravagant or was having any vices. Therefore 1/3rd deduction on account of the personal expenses, to my mind, is not justified. From the evidence it can be inferred that the dependency income of the deceased was Rs. 500/- per month. The annual income would thus come to Rs. 6,000/-. (Rs. 500/-X 12= Rs. 6,000/-). The deceased was 45 years old at the time of his death. Taking into consideration the expectancy of life as now settled by judicial pronouncement to be 70 years, the multiplier of 15 years would meet the end of justice. So applying the multiplier of 15 years the compensation amount would come to Rs. 90,000/-. That will be the total financial loss to the family. No deduction on account of the uncertainty of life or lump sum will be made because the determination of quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales. The Supreme Court in the case of Hardeo Kaur v. Rajasthan State Road Transport Corporation reported in 1992 ACJ page 300= I (1992) ACC 603 SC) observed as under :

"We are of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The

accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Motor owners Insurance Co. Ltd. v. J.K. Modi, 1981 ACJ 507 (SC) held that the delay in the final disposal of motor accident compensation cases, us in all other classes of litigation, takes a sting out of the laws of compensation and added to that of the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago less than quarter of its value when it is received after such a long time. In Manjushri Raha v. B.I. Gupta, 1977 ACJ 134 (SC), this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the Courts below were not justified in making lump sum deduction in this case."

6. Therefore, relying on the observation of the Supreme Court I am of the considered view that the Tribunal ought not to have allowed deduction on any account.

7. The award of the Tribunal regarding issue No. 2 is accordingly modified to the extent that the claimant shall be entitled to compensation amounting to Rs. 90,000/-. Of course adjustment of the amount already received has to be made from this compensation. The same will be distributed as per the proportion mentioned by the Tribunal in his award in question. The appellants will also be entitled to interest at the rate of 12% on this enhanced award from the date of the petition till realisation.