R.K. Sharma And Ors. vs D.T.C. And Anr.
2003 Latest Caselaw 679 Del

JUDGMENT

S.K. Mahajan, J.

1. Both the above appeals arise from the same award and since common questions of law and facts arise in both the above cases, they were heard together and are being disposed of by this common order.

2. While in FAO No.347/1997, the appellants are claiming enhancement of compensation awarded by the Motor Accident Claims Tribunal for the death of Smt.Chander Kanta, wife of appellant no.1 and mother of appellants 2 and 3, in a road accident alleged to have been caused by the rash and negligent driving of the bus by its driver, the DTC has filed appeal being FAO No.57/1998 challenging the award of the Tribunal in favor of the respondents on the ground that there was no evidence before the Tribunal to hold that the accident was caused by the rash and negligent driving of the bus belonging to the appellants by its driver. The facts in short giving rise to both these appeals are:-

That on 23.1.1991, when the deceased was riding on the pillion of the two-wheeler scooter being driven by her husband, the scooter was allegedly hit by the bus from the rear as a result of which the deceased fell down on the road and was run over by the bus. The deceased was taken to the hospital where she was declared brought dead. Alleging that the accident was caused due to the rash and negligent driving of the bus by its driver; the appellants filed a claim for compensation of Rs.33 lakhs 19 thousand on the ground that the deceased was a qualified music teacher and was in receipt of a salary of Rs.2979/- per month; that besides availing facilities of government accommodation she was a renowned artist of All India Radio and was also earning for performances as a radio artist. On the basis of the material on record, the Tribunal held that the income of the deceased was Rs.3500/- per month and applying the ratio of the judgment of the Supreme Court in Sarla Dixit Versus Balwant Yadav calculated her average income for purposes of arriving at the compensation at Rs.5250/- per month and awarded a sum of Rs.5,04,500/- in favor of the claimants.

FAO No.57/1998

3. As already mentioned above this award is challenged by the DTC by filing appeal on the ground that there was no evidence before the tribunal to hold that the accident was caused due to the rash and negligent driving of the bus by its driver. Contention of the DTC is that since the bus was not involved in the accident, there was no question of its being driven rashly and negligently by its driver. Mr.Dhir, learned counsel for the DTC has referred to the evidence of the witnesses to contend that the eye witness produced by the respondents cannot be believed inasmuch as he could not have witnessed the alleged accident.

4. I am not impressed with the arguments advanced by learned counsel for the appellants inasmuch as PW-3 is an independent witness and he has clearly stated that the bus being driven by appellant no.2 had come at a speed of 35 to 40 km per hour and hit the scooter from the rear side resulting in fatal injuries to the pillion rider. He has also stated that the scooterist who was driving the scooter took the lady to the hospital in a TSR. He also submitted that he informed the police about the accident and the Control Room van had come to the spot within 5 to 7 minutes. The husband of the deceased has also deposed that the bus in question hit his scooter from the rear side resulting in the accident and the accident was caused entirely due to the rash and negligent driving of the bus by its driver. Both these witnesses have been cross-examined at length by the appellants but nothing could be brought out to doubt the veracity of their statements.

5. The DTC had also produced the driver and the conductor of the bus as its witnesses before the Tribunal. Both of them admitted that at the time of accident their bus was in the vicinity of the place of accident. However, they have denied that any accident involving their bus with the scooter had taken place at the relevant time. The Investigating Officer who arrived at the scene of the accident found the two wheeler scooter lying at that place. Both the witnesses who had appeared on behalf of the claimants were cited by the police as witnesses in the charge-sheet. The bus was admittedly taken in possession during investigation and was subjected to mechanical inspection. As per report of mechanical inspection, there was a slight dent on the left bumper of the bus. No explanation is given by the DTC as to how and when the said dent was caused on the front left bumper of the bus. The slight dent on the front left side of the bumper clearly shows that the bus had collided with something as a result of which a dent was caused on the front left side of the bumper. As it is a light dent, the bus must not have hit a heavy object and it may have been caused because of its colliding with a light object may be the scooter in question. Admittedly, the witnesses appearing on behalf of the appellant had no enmity against the driver of the bus nor they had any personal axe to grind. There was, therefore, no reason as to why they should falsely implicate the bus and its driver. On the basis of material on record, the learned Tribunal came to a finding that on the principle of proponderence of probabilities, it had no hesitation to conclude that the accident did involve the bus belonging to the DTC. I do not see any perversity or infirmity in the said finding of the Tribunal so as to interfere with the same and I am satisfied that the accident was caused due to the rash and negligent driving of the bus by its driver.

6. Since, no other point has been argued by Mr.Dhir in support of his appeal, I do not find any merits in this appeal and the same is, accordingly, dismissed with no order as to costs.

FAO No.347/1997

7. Now, coming to the appeal of the claimants being FAO No.347/1997, the grievance of the appellants is that after arriving at this income of Rs.5250/-, the Tribunal has deducted 50% on account of personal expenses. It is submitted that the normal rule, as has been consistently held by the Supreme Court is that 1/3rd of the income of the deceased is taken towards personal expenses and the remaining amount is to be taken as loss of dependency to the family for arriving at the compensation. It is, therefore, submitted that the Tribunal ought not have deducted 50% on account of personal expenses and the Tribunal has clearly erred in deducting the said amount so as to arrive at just compensation payable to the heirs of the deceased.

8. The Tribunal while deducting the 50% from the income of the deceased towards personal expenses has relied upon a decision of this Court in Mala Devi Versus Sukhvir Singh 1997 (2) Apex Decisions (Delhi ) 175. I have gone through the judgment of this Court in Mala Devi Versus Sukhvir Singh (supra) and the same, in my opinion, is not applicable to the facts of the present case. The Court in that case was considering the case of a lady who was not employed and it was in these circumstances that the Court held that the services of a housewife or a mother even though rendered gratuitously indeed has a monetary value in respect of which the claimants were entitled to compensation. It was held that the deceased as a housewife was looking after the household and was providing the services as such to both her husband and her children and would continue to do for many years and taking into consideration all those factors the loss of dependency was assessed at Rs.150/- per month by the Tribunal which was held by this Court not to be illegal. Nowhere in this judgment, it is held by the Court that in the cases of women the Tribunal should deduct 50% of the income towards personal expenses of the deceased.

9. It is not understood as to how the aforesaid judgment could have been applied by the Tribunal to the facts of the present case. Applying the principles laid down by the Supreme Court, it is only 1/3rd of the income of the deceased that has to be deducted from the income towards personal expenses of the deceased to arrive at just compensation. Deducting 1/3rd from the income of the deceased towards her personal expenses the loss of dependency would come to Rs.3500/- per month or say Rs.42,000/- per year. Applying the multiplier of 15, as has been done by the Tribunal, the loss of dependency would come to Rs.6,30,000/- . Adding to it the funeral expenses and loss of consortium etc. as has been assessed by the Tribunal, the total compensation to which the appellant would be entitled comes to Rs.6,62,000/-.

10. I, accordingly, allow this appeal and modify the award and direct that the appellants should be entitled to compensation of Rs.6,30,000/- in place of Rs.5,04,500/-. The appellants would also be entitled to interest @ 9% per annum on the enhanced compensation from the date of filing of this appeal till realisation. In the facts of this case, the parties are left to bear their own costs.