Smt. Ajudhya Devi vs Sh. Balwant Singh And Ors.
2003 Latest Caselaw 913 Del

JUDGMENT

S.K. Mahajan, J.

1. Admit.

2. Despite the case having been passed over once no one has appeared on behalf of the respondents. From the record I find that even on the earlier hearings no one had appeared on behalf of the respondents. I have, therefore, proceeded to decide this appeal in the absence of the respondents.

3. The appellant has filed this appeal for enhancement of compensation awarded by the Motor Accidents Claims Tribunal for the death of her son who had died in a road accident alleged to have been caused by rash and negligent driving of the DTC bus by its driver,respondents no.1. The facts giving rise to this appeal are :-

On December 28, 1990 the deceased was walking on the road at Azad Pur when a DTC bus bearing registration no.DET 9874 alleged to be driven in a rash and negligent manner by respondents no.1 hit the deceased from behind as a result of which the deceased sustained injuries which proved to be fatal and he died at the spot. Alleging that the accident was caused due to the rash and negligent driving of the driver of the bus and the appellant was entitled to compensation for the death of her son in that accident, appellant filed a petition before the Motor Accidents Claims Tribunal claiming compensation for such death of her son. At the time of his death the deceased was about 35 years of age. His wife is stated to have died the next day of the accident because of shock and the petition for compensation was, therefore, filed by his mother. It was alleged that the deceased was earning a sum of Rs.2000/- per month from his business and there being longevity in the family of the deceased the deceased would have lived up to the age of 70 years. Compensation of Rs.10 lakh was, therefore, claimed by the appellant.

4. In the written statement filed by the respondents it is denied that the accident was caused because of the rash and negligent driving of the bus by its driver. It was stated that on the fateful day the bus was going from Central Secretariat to Narela and when it reached the Azadpur Terminal at about 735 hrs the driver stopped the bus for passengers to alight and for boarding of some passengers who were standing at the bus stop. It is stated that after the passengers had boarded the bus the driver moved the bus and when the bus reached the traffic signal and was going to stop because of red light it was noticed that the deceased was hit by some other vehicle and was thrown away and had an impact with the DTC bus as a result of which he received accidental injuries. The other vehicle which is alleged to have hit the deceased was stated to have sped away from the spot. On the pleadings of the parties the Tribunal framed the following issues :-

1. Whether Gandharv Singh died in accident as alleged ?

2.Whether accident took place due to rash and negligent driving of vehicle as alleged?

3.Whether claimant is legal heir of the deceased?

4.To what amount of compensation the claimant is entitled and from whom?

5.Whether respondents are not liable to pay the amount of compensation for the reasons mentioned in the written statement.

6.Relief.

5. After the evidence was led the Tribunal while deciding issues no.1and 2 held that the accident was caused because of the contributory negligence of the deceased. It was held that as the deceased himself had contributed to the accident the appellant would not be entitled to more than 50% of the compensation to be awarded to her for the death of her son. The income of the deceased from the dhaba which he was allegedly receiving could not be proved before the Tribunal. On taking the minimum wages payable under the Minimum Wages Act to be the income of the deceased at the time of the accident and applying the principles laid down in Sarla Dixit versus Balwant Yadav and another 1996 ACJ 581 the Tribunal took the average income of the deceased at Rs.1200/- per month. Assuming that the deceased was spending 50 per cent of such income on himself, the balance 50 per cent was taken as loss of dependency to the appellant. Applying the multiplier of 12, taking into consideration the age of the appellant, the Tribunal held that the appellant was entitled to a sum of Rs.86,400/- by way of loss of dependency. Adding to this another sum of Rs.12,000/- towards loss of consortium and loss of estate, etc., a total sum of Rs.98,400/- was awarded by way of compensation. Since the deceased was held to have contributed to the accident, 50 per cent of this compensation was directed to be paid to the appellant. This award, as already mentioned above has been challenged by filing this appeal.

6. The contention of the learned counsel for the appellant is that there was no evidence before the Tribunal to hold that the deceased had contributed to the accident or that the accident was caused because of the contributory negligence of the deceased. It is also submitted that in view of the statement of the appellant that the deceased was earning about Rs.1700-1800/- per month to which there was no rebuttal, the Tribunal ought not have taken the minimum wages payable in the year 1990 to be the income of the deceased. It is also submitted that the Tribunal has applied the multiplier of only 12, whereas the mother of the deceased is still alive though a period of more than 13 years has expired from the date of the accident. It is his submission that since there was a longevity in the family of the deceased the Tribunal ought to have applied multiplier of 16 to arrive at the just compensation payable to the appellant.

7. While holding that the deceased had contributed to the accident the Tribunal has relied upon the complaint book kept in the bus. In the complaint book some of the passengers, who were allegedly traveling at the time of the accident in the bus, had written that the accident was not caused because of the fault of the driver but the deceased appeared to be under the influence of liquor and was staggering in a zig-zag manner on the road. It was allegedly written by these persons that when the deceased was likely to hit a cyclist, the cyclist pushed him away as a result of which he struck against the bus and injuries were sustained by him and he died at the spot. Except for the driver and conductor of the bus no such person, who had alleged to have written on the complaint book, was produced as a witness before the Tribunal. In my opinion since no such person was produced before the Tribunal no reliance should have been placed upon the writings allegedly made by them in the complaint book. The writing was not proved by the persons who had alleged to have made the same and their reliance by the Tribunal was wholly erroneous. There is also no evidence to show that the deceased was under the influence of liquor. The post-mortem report also did not suggest that the deceased was either smelling of liquor or was under the influence of liquor at the time of the accident. In the absence of such evidence the Tribunal has clearly erred in observing that the deceased was staggering on the road in a drunken condition and was pushed by a cyclist as a result of which he struck against the bus. In case all these persons whose names are given in the complaint book were eye-witnesses to the accident it was the duty of the respondents to produce them in support of their case. The fact that they have not been produced clearly show that either they had not witnessed the accident or they had not written in the complaint book that the accident was not caused because of the fault of the driver of the bus. Because of the non-production of these witnesses the Tribunal ought to have drawn an adverse inference against the respondents. Moreover, in the written statement filed by the respondents, it is not the case set up by them that the deceased had hit a cyclist as a result of which the cyclist pushed him and he struck against the bus. Case set up in the written statement was that the deceased was hit by some other vehicle and was thrown away as a result of which he struck against the bus and the vehicle which had hit the bus fled away from the spot. Story now set up in evidence by the respondents is contradictory to the case set up in the written statement and cannot be believed. In my opinion the deceased had not in any manner contributed to the accident and the accident was not caused because of the contributory negligence of the deceased. On the basis of the material on record I am of the opinion that the accident was caused entirely due to the rash and negligent driving of the bus by its driver.

8. Since it is not proved before the Tribunal that the deceased was earning about Rs.1700-1800/- per month in my opinion the Tribunal was justified in taking the minimum wage to be the income of the deceased at the time of the accident. Applying the principles laid down in Sarla Dixit (supra) the Tribunal has also taken into consideration the future prospects in the life and career of the deceased and has taken his average income at Rs.1200/- per month. Taking the age of the appellant a multiplier of 12 has been applied. Though it has been held in a few cases that unless there are special reasons to deviate, the Court should normally adopt the multiplier in the Second Schedule to the Motor Vehicles Act to arrive at just compensation payable to the family of the deceased, however, in special cases the Court may apply different multiplier to arrive at just compensation. In the present case the appellant is still alive though a period of 13 years has expired, therefore, it would be appropriate to apply the multiplier of 13 to arrive at just compensation to the appellant. The Tribunal has taken the loss of dependency to the appellant at 50 per cent of the income of the deceased on the assumption that the deceased must have been spending 50 per cent on himself and his wife. It had come on record that the wife of the deceased had died the next day of the accident and the Tribunal, therefore, should not have deducted 50 per cent of the income of the deceased towards his personal expenses and the loss of dependency, in my opinion, should have been taken at 2/3rd of the income of the deceased, the remaining 1/3rd being the expenses that he may have spent on himself. Taking 2/3rd of the income of the deceased to be the loss of dependency, the loss of dependency to the appellant would come to Rs.800/- per month or Rs.9600/- per year. Applying the multiplier of 13 years, the total loss of dependency to the appellant would come to Rs.1,24,800/-. Adding to this the conventional figure of Rs.15,000/- being non-pecuniary damages for the loss of estate and funeral expenses etc., the appellant would be entitled to Rs.1,39,800/- by way of compensation.

9. In view of the above I allow this appeal, modify the award and direct that the appellant would be entitled to the total compensation of Rs.1,39,800/-. The appellant would also be entitled to interest @ 9 % per annum on the enhanced compensation from the date of filing of the application before the Tribunal till the date of payment. Since no one is appearing on behalf of the respondents I leave the parties to bear their own costs.