Delhi Transport Corporation vs Deep Kanta And Ors.
2002 Latest Caselaw 800 Del

JUDGMENT

R.C. Chopra, J.

1. The Delhi Transport Corporation assails an order dated 27th July, 1995 passed by learned MACT in case No. 19/83 awarding compensation of Rs. 3,07,000/- in favor of respondent/claimants on account of the death of Shri Ashok Kumar husband of the claimant/respondent No. 1 is an accident with a DTC bus on 23.8.1982.

2. I have heard learned counsel for the appellant and learned counsel for the respondents 1, 2 and 3. I have gone through the Trial Court Records. None has appeared for respondent No. 4, the driver of the offending vehicle.

3. The facts relevant for the disposal of this appeal, briefly stated, are that respondents 1, 2 and 3 filed a claim petition under Section 110 of the Motor Vehicle Act 1939 (hereinafter referred to as the Act only) against the appellant and respondent No. 4 alleging that on 23.8.1982 at about 9.50 PM when Ashok Kumar aged about 27 years was going on his two wheeler Scooter, the DTC bus No. DHP 2717 which was being driver by respondent No. 4 in a rash and negligent manner struck against his scooter as a result of which he fell down and sustained grievous injuries. He was removed to hospital where he was declared dead. The respondents 1, 2 and 3, the widow, child and father of the deceased alleged that the deceased was running a tea stall and his income was about Rs. 1000/- per month. They claimed compensation of Rs. 8 lakhs with interest.

4. The appellant and respondent No. 4 filed a joint written statement in which the accident was admitted but it was denied that it was on account of rash and negligent driving on the part of the respondent No. 4. The accident was stated to be on account of the fast speed on which the deceased was driving his two wheeler scooter. The income of the deceased as well as the dependency of respondents 1, 2 and 3 upon him was also disputed.

5. On the pleadings of the parties, the learned Tribunal framed following issues:

1. Whether the deceased Sh. Ashok Kumar received fatal injuries in the accident on 23.8.1982 due to rash and negligent driving of Bus No. DHP-2717 on the part of Respondent No. 1?

2. Whether the accident was caused due to the rash and negligent driving of Scooter on the part of the deceased himself so what is its effect?

3. Whether the Petitioners are the real representatives of the deceased?

4. To what amount of compensation, if any, are the Petitioners entitled and from whom?

5. Relief.

6. In support of their case the respondents/claimants examined PW1 Dr. Chander Kant to prove post mortem report Ex.PW1/A, PW2, Hari Chand eye witness, PW3 Smt. Deep Kanta widow of the deceased and PW4 Head Constable Sham Lal who proved a copy of the FIR Ex. PW4/1. The respondents in their defense examined RW1 Lal Chand who deposed that respondent No. 1, the driver of the offending bus, had left the appellant's service in the year 1988. In his cross examination he admitted that respondent No. 4 had been charge sheeted for the accident in question and was removed from service due to the accident in question. RW2 Zile Singh, the Conductor of the offending bus, deposed that at the time of the accident a scootrist had come from Ashram side and turned towards right as a result of which he hit the Bus, fell down and sustained injuries.

7. Learned Tribunal after considering the pleadings of the parties and the evidence on record came to the conclusion that the accident in question was caused due to rash and negligent driving on the part of Driver of the offending bus. He calculated the compensation by following the principles laid down by the Apex Court in General Manager Kerala State Transport Corporation v. Susamma Thomas reported in 1994 ACJ page 1 and passed an award of Rs. 3,07,000/- in favor of the respondents 1, 2 and 3.

8. Learned counsel for the appellant has vehemently argued that the learned Tribunal had erred in holding that the accident in question was on account of rash and negligent driving on the part of respondent No. 4. He submits that the testimony of PW2 Hari Chand is not reliable and trustworthy and as such it ought to have been discarded. After going through the testimony of PW2, this Court finds that this witness had made a categorical statement that at the time of accident in question the offending bus was being driven in a rash and negligent manner. In this cross examination it came out that after the impact even the bus had stopped at a distance about 30-35 steps which also shows that the bus was being driven at a fast speed. The impact had taken place when the deceased was trying to take a turn towards his right and at that time the bus was still 15/17 steps away from him. Had the bus in question been at a slow speed or under the control of respondent No. 4 he could have easily applied breaks and avoided the impact. It is therefore clear that on account of fast speed and negligence respondent No. 4 could not control his bus and thus struck against the Scooter which was taking a right turn. It is noteworthy that respondent No. 4 the driver of the offending bus did not enter the witness box to prove his version and as such an adverse inference can be drawn against the appellant's defense. RW 4 Zile Singh, Conductor is of no help to the appellant as being a conductor he was inside the bus and it appears that he had come to know of the accident only after the impact and as such did not know as to how and in what manner the accident in question had taken place. The learned Tribunal had considered the evidence on record properly and had come to the conclusion that accident was due to rash and negligent driving on the part of Respondent No. 4. This Court finds no good grounds for taking a different view. The plea of the appellant that the accident in question was not a account of any rash and negligent driving on the part of respondent No. 4 cannot be accepted.

9. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is on higher side for the reason that there was no proof on record in regard to the income of the deceased. It is also submitted that there was no justification for stepping up the income of the deceased on the ground that there were prospects of future increase in the income of the deceased. After considering the submissions made by learned counsel for the parties, this Court has no hesitation in concluding that proof of income or books of accounts cannot be insisted upon in every case for the reason that self employed persons in low income group can neither be expected to maintain books of accounts nor to have any documentary proof in respect of their income. The deceased was a petty tea vender earning about Rs. 1000/- per month at the time of his death and as such the absence of documentary proof or books of accounts in support of his income is inconsequential.

10. The plea of learned counsel for the appellant that learned Tribunal had no justification in estimating the income of the deceased at Rs. 2400/- per month cannot be sustained for the reason that the learned Tribunal had relied upon General Manager Kerala State Transport Corporation v. Susamma Thomas (supra) in which Apex Court had clearly observed that the prospects of future increase in the income of a deceased can be taken into consideration. In a recent judgment titled Donat Louis Machada v. Ravindra and Ors. reported in II (2000) ACC 602 SC, the Apex Court once again reiterated that the income of the deceased at the time of his death cannot be the sole criteria for computing the financial loss suffered by the dependants and reasonable prospects of increase in the income of deceased have to be taken into consideration. The prospects of future increase in the income of the deceased ought to be taken into consideration for assessing the financial loss to the family and computing the compensation payable to them primarily for the reason that growing prices and inflation bring proportionate increase in the income as well as expenditure of people. In case the prospects of future increase in the income are not taken into consideration, the family of a deceased is left high and dry in future by incurring higher expenditure on daily needs on account of rise in prices but getting compensation based only on the last income of the deceased without any addition due to prospects of future increase in income. This Court, therefore, has no hesitation inholding that prospects of future advancement in the career and increase in the income of a deceased must be taken into consideration while computing the compensation payable to legal representatives.

11. In the case of a deceased belonging to a salaried class, the average monthly income of a deceased can be easily calculated by considering the pay which he was drawing last at the time of his death and the final pay which he could have drawn at the time of his retirement. The reasonable prospects of his promotions may also be kept in mind. In case of a self employed professional also the future advancement of career and increase in income can be safely assessed on estimated basis. If the income of the deceased at the time of his death was low the Court may assume 2/3 times increase in his income by the time he would have stopped working. However, in case of a self employed professional having a fairly high income the future increase may be estimated at a lower amount as optimum raise also has its own limits. In the case of a businessman however the increase in the future income has to be visualized with due care and circumspection for the reason that a businessman usually faces more uncertainties and ups and downs in the course of his business.

12. After perusing the evidence on record and the impugned orders passed by learned Tribunal, this Court is of the considered view that the respondents/claimants had satisfactorily established on record that the deceased Ashok Kumar had suffered fatal injuries in the course of the accident with the appellant's bus on 23.8.1982, which was being driven by respondent No. 4 in a rash and negligent manner. The respondents/claimants have proved on record that at the time of his death, deceased Ashok Kumar was aged about 27 years and his income was about Rs. 1,000/- per month and respondents/claimants are his legal representatives. Learned Tribunal had estimated the average income of the deceased at Rs. 2,400/- per month keeping in view the prospects of future increase in his income and thereafter computed the compensation by applying a multiplier of 16. This multiplier was also reasonable for the reason that age of the deceased at the time of the accident was only 27 years. It cannot be said that the compensation awarded to the respondent/claimants was exhorbitant or excessive and as such, should be reduced. This Court therefore, is of the considered view that the compensation awarded by learned Tribunal was just and fair and calls for no interference by this Court.

13. No other question has been raised.

14. In view of the foregoing reasons this Court is of the considered view that the impugned order does not suffer from any infirmity. The appeal, therefore, stands dismissed.