Prabodh Chand Tyagi And Anr. vs Delhi Transport Corporation And ...
2003 Latest Caselaw 117 Del

JUDGMENT

S.N. Kapoor, J.

1. The parents of the deceased boy, aged 13 years have filed a claim petition. The learned Trial Court awarded a sum of Rs. 50,000/- for the death of her son, aged 13 years.

2. Feeling aggrieved the parents have filed this appeal.

3. First the facts in brief: The deceased Prashant Tyagi @ Vickky was going from village Hastsal to Mohan Nagar on 7.7.94 Along with his sister, Preeti in a Maruti Car bearing No. DL-5C-5877. The deceased was sitting on the front seat whereas Preeti was sitting on the back seat. The car was being driven by Ajay Tyagi. A truck bearing registration No. UP-80-9651 was going ahead the Maruti car. When the car was moving in front of Radhu Cinema at about 8.20 p. m. the truck driver stopped his truck. Ajay Tyagi also stopped his car. But the DTC bus bearing DLP 220 moving behind the car and driven by one, Madan lal, respondent No. 2 did not stop the bus in time and hit the Maruti car from behind with a great force. The Maruti car was crushed between the truck and the offending DTC bus. The deceased, Prashant Tyagi sustained grievous injuries. Ajay Tyagi and Preeti sustained injuries. Prashant Tyagi was taken to G.T.B. Hospital but he could not survive and died before he could reach the hospital.

4. It is submitted that the deceased was studying in 9th standard in Janta Inter College, Kharkhoda, District Meerut. He was stated to be a brilliant student and secured high marks. The father of the deceased is Managing Director of Sadhan Sehkari Samiti, Mawana. The parents accepted that if the deceased had not expired he would have reached the pinnacle of his career. All the hopes of the appellant had been shattered on account of the death of their son. On the basis of the longevity in the family of over 70 years he would have lived for a long time.

5. The case of the respondent /DTC was that the driver, respondent No. 2 was wrongly challaned by the police and he was contesting the same in the Court of law. It was denied that the accident took place on account of rash and negligent driving on the part of the DTC driver. Instead it took place on account of negligence on the part of the truck driver and the car driver. It is claimed that the truck stopped all of a sudden in the middle of the road as a result the driver of the Maruti car could not stop his vehicle in time and hit the truck from behind. The DTC driver immediately applied the break, but being a heavy vehicle and short distance, the bus came in touch with the car. It is further claimed that the persons who witnessed the accident stated that the truck driver had applied the brakes in the middle of the road at the instance of Home Guard.

6. The learned Tribunal after considering the evidence led, including the admission of RW-1, Madan Lal, held that the deceased died due to the injuries suffered by him on account of rash and negligent driving of the offending vehicle driven by respondent No. 2, Madan Lal. It also held the DTC liable to pay compensation amounting to Rs. 50,000/- with 9% interest.

7. The grievance of the learned Counsel for the appellants is that a sum of Rs. 50,000/- in a death case was not justified. He relied upon General Manager, KSRTC v. Susamma Thomas, 1 (1994) ACC 346 (SC)=1994 ACJ 993.

8. Having heard learned Counsel for the appellants and despite the directions that in case the matter is not argued today by the learned Counsel for the respondent, orders might be passed. Learned Counsel for the respondent has not appeared.

9. The deceased was studying in Janta Inter College in 9th standard. He was said to be a brilliant student. Father of the deceased is the Managing Director of Sadhan Sehkari Samiti, Mawana. He was in a position to provide best education to his son.

10. As regards negligence, it would be worthwhile to note the admissions made by respondent No. 2, Madan Lal, in his statement. It would be worthwhile to briefly refer to the statement of PW-1, Ajay Tyagi. He stated that on 7th July, 1994 he was driving Maruti Car No. DL 5C 5877. At about 8.15 a.m. when he reached near Shahadara fly-over in front of Radhu Cinema, a truck moving ahead of him was suddenly stopped by the driver by applying the brakes. He also stopped his car and also gave a signal by raising his hand to indicate that he was stopping. In the meanwhile, DTC bus bearing No. DIP 220 came from behind and hit back portion of the car. Vicky aged 13 years and Preeti aged 15 years, the two children of his maternal uncle suffered injuries. Vicky was moved to hospital. However, he succumbed to the injuries. Preeti was also medically examined. RW-1, Madan Lal, stated in his statement that at about 8.30 a.m. on 7th July, 1994 he reached Shahadra fly-over a Maruti car was going ahead of him and it was following a truck. The truck suddenly stopped, as a result of which the Maruti car hit against the said car. He also applied his brakes, but being a heavy vehicle and short distance his bus also came in touch with the Maruti car. He also stated that he came to know that a Home Guard Constable applied the brakes in order to checking the truck for taking something. It was not his fault.

11. In cross-examination, he stated that he did not file the written statement and he admitted that a criminal case was pending against him. He did not lodge any complaint against the Home Guard Constable about stopping the truck after the accident. He denied that suggestion that this accident occurred due to his rash and negligent driving of the bus. There is no reason to disbelieve the testimony of Sh. Ajay Tyagi for, he had no enmity with the bus driver and the sequence of events. Since the admitted fact is that the bus hit the Maruti car and further the bus being a heavy vehicle could not be stopped by the driver himself would certainly indicate that the bus was moving at a very high and uncontrollable speed on one hand and was not keeping appropriate distance between the car moving ahead of it on the other hand. Therefore, it is very much apparent that the bus driver of the DTC bus, namely, Madan Lal, respondent No. 2, was rash and negligent in driving the offending vehicle leading to the accident and ultimately caused death of the deceased, son of the claimants.

12. Now, coming to the quantum of compensation, grievance of the appellant is that the amount of Rs. 50,000/- for death of a son was highly inadequate. In this regard, learned Counsel for the appellants referred to two cases of injuries, viz., Arun Sondhi v. Delhi Transport Corporation, decided by a Single Judge of this Court and Shashendra Lahiri v. UNICEF and Ors., 1998 ACJ 859 decided by the Supreme Court. One must not forget that the consideration in an injury case and a death case are different; at least in the case of injury 1/3rd of the income towards expenditure is not required to be considered.

Again in addition to the above, additional amount is required to be given in the injury case for continuous treatment of the injured. But in a death case at least the compensation is bound to differ on these two counts, and therefore, the above-mentioned two judgments are of no help. However, there has been no dispute that the deceased was a student of Janta Inter College and was studying in 9th standard. His father is the Managing Director of Sadhan Sehkari Samiti, Mawana and he was in a position to provide best possible education to the deceased. Naturally the future prospects of the deceased would have been much higher as compared to any other ordinary average child. The deceased was 13 years of age and there were many imponderables about the life. In order to deal with unnecessary speculation/ assumption the Legislature intended to provide certain guidelines in terms of Schedule II appended to the Motor Vehicles Act, 1988. It may be mentioned that Sub-section (1) of Section 163-A provides as under :

"[163A. Special provisions as to payment of compensation on structured formula basis.--(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be."

13. Since the child was studying, one has to vary circumspect in assessing the amount of just compensation, particularly in view of the provisions of Section 163-A read with Schedule II of the Act. In this regard, it is notable that in the case of New India Assurance Co. Ltd. v. Vibha Sengar and Ors., I (2001) ACC 449 (DB)=2002 ACJ 739, a Division Bench of the Allahabad High Court took the following view :

"2...The word used in the Second Schedule, Item No. 6, covers all persons whose income is not disclosed in the claim petition or not satisfactorily proved before the Tribunal, and all persons who are not earning anything are covered by this notional income clause of the Second Schedule. It is to cover cases of persons who die in motor accident and whose income is not shown through any source. Children of the age group of the victim in this case or of any other age group are also well covered by this item No. 6 of the Second Schedule for computing compensation. Accordingly, this argument of Mr. Grover is rejected. In the present case, the Tribunal applied correct multiplier of 15 and after deducting 1/3rd from the notional income for expenses of the victim, it has been rightly calculated at Rs. 1,50,000/- only as the compensation awarded in the present case."

14. It would be worthwhile to reproduce Item 6 of the Second Schedule appended to the Motor Vehicles Act :

"6. Notional income for compensation to those who had no income prior to accident :

Fatal and disability in non-fatal accidents :

    (a)    Non-earning persons --Rs. 15,000 p.a. 
 (b)    Spouse   --Rs. 1/3rd of income of the        earning/surviving spouse  
 

   In case of other injuries only "General Damage" is applicable."  
 

15. It would be worthwhile here to refer to the case of Bodhiram and Anr. v. Ramprasad and Ors., 2002 ACJ 439, a Division Bench of the Madhya Pradesh High Court headed by Hon'ble Mr. Justice D.M. Dharmadhikari (as his Lordship then was before becoming Chief Justice and elevation to the Supreme Court). In that case, the deceased was 15 years of age and was studying in 7th standard. He was a meritorious student. His notional income was taken to be Rs. 15,000/- per annum and considering the age of the claimant and other imponderables, a multiplier of 12 years was applied and compensation of Rs. 1,22,000/- was awarded taking the amount before deduction towards personal expenditure at Rs. 1,80,000/-; the Court took 1/3rd of the amount (towards personal expenditure) and awarded Rs. 1,20,000/- plus Rs. 2,000/- towards funeral expenses.

16. It may be mentioned that in the case of Badri and Ors. v. Surender Kumar and Ors., III (2002) ACC 714=2002 ACJ 853 in the case of a child of 9 years a sum of Rs, 1,50,000/- was awarded by a Single Judge of the Rajasthan High Court along with interest @ 12% per annum.

17. In so far as the applicability of Section 163-A of the Act is concerned, in Oriental Insurance Co. Ltd. v. Hansrajbhai Kodala and Ors., in sub-paras 5 and 6 of para 22 the Supreme Court observed as under :

"22. In the result, the contention of the claimants that right to get compensation under Section 163-A is additional to claim compensation on no-fault liability is rejected for the following reasons:

(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx

(5) The procedure of giving compensation under Section 163-A is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under Section 163-A compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability the claimant is required to prove wrongful act, neglect or default of the owner of the vehicle or the vehicle concerned.

(6) Award of compensation under Section 163-A is on a predetermined formula for payment of compensation to road accident victims and that formula itself is based on criteria similar to determining the compensation under Section 168. The object was to avoid delay in determination of compensation."

18. The appellants are entitled to claim just compensation at least at that rate. It may further be mentioned that the structured formula has provided some

objective standard formulae for ascertaining just compensation despite some mistakes here and there in the Second Schedule and the directions given in UP State Road Transport Corporation v. Trilok Chand, . From the judgment in UP State Road Transport Corporation v. Trilok Chand (supra), considering the defects in the Second Schedule rest of the intentions of the Legislature expressed through the Second Schedule have to be applied. In UP State Road Transport Corporation v. Trilok Chand (supra), it appears that the notional income could be taken at Rs. 15,000/- and 1/3rd is required to be deducted towards personal expenditure. Thus, it would come to Rs. 10,000/- per month. The Second Schedule indicates that up to 15 years of age multiplier of 15 years shall be applied. Thus, a sum of Rs. 1,50,000/- would be required to be paid if one applies Item No. 6 of the Second Schedule in every case of a child and the amount of compensation would not be less than this. In some similar cases the Courts have otherwise awarded compensation of Rs. 1,50,000/-. It is not a case where less than 15 years' multiplier could have been applied in view of the ages of the parents. One should keep in mind that the deceased was the eldest son of the claimants and in that case it would be appropriate to assume that the claimants themselves might not have been above 42 years or so in any case. Consequently, there is no reason not to apply 15 years' multiplier. Accordingly, applying 15 years' multiplier under Section 163-A itself, the claimants are entitled to claim compensation to the extent of Rs. 1,50,000/-. In absence of any other objective test, I think this test is the only way to arrive at a just compensation in case of such young persons who had no income of their own at the time of death. Accordingly, the compensation is enhanced to Rs. 1,50,000/- with interest @ 12% per annum up to 31st March, 2001 and @ 9% per annum thereafter. The respondent/DTC is directed to pay the enhanced amount within four weeks.

19. The claimant mother shall get 70% of the amount of the total amount of compensation including interest and the claimant father shall get 30% of the total amount of the award. 75% amount of the share of the claimant mother shall either be deposited in fixed deposit or in appropriate bonds fetching better interest like I.D.B.I./I.C.I.C.I. Bonds etc. subject to satisfaction of the learned Tribunal.

20. With these observations, the appeal stands allowed.