Delhi Transport Corporation vs Smt. Geeta Kakkar And Ors.
2003 Latest Caselaw 932 Del

JUDGMENT

S.K.Mahajan, J.

1. Since both these appeals arise out of the same award passed by the Motor Accident Claims Tribunal, they have been disposed of by this common order. A few facts relevant in deciding these appeals are:

On 30.6.1982 when the deceased was going on his two-wheeler scooter near the Khyber Pass at about 9:15 p.m. he was hit from behind by a DTC bus which fled away from the scene after hitting the deceased. As a result of the accident, the deceased received injuries, which proved to be fatal. One Mr. Anil Mittal who was stated to be going behind the deceased on his motorcycle having witnessed the accident made a report about the same to the police and after investigation an FIR was registered. The driver of the DTC bus was arrested and the case, I am informed, is pending against the driver of the bus for his having caused death by rash and negligent driving. The appellants who are the wife and children of the deceased filed an application before the Motor Accident Claims Tribunal claiming compensation for the death of the deceased. It was alleged in the application that the accident having been caused by the rash and negligent driving of the bus by its driver and the deceased having died due to the injuries sustained in the said accident, the appellants were entitled to compensation from the respondents. It was alleged that the deceased at the time of the accident was paying a sum of Rs.2,500/- per month to the appellants for meeting the household expenses and after two years, the income of the deceased was expected to be Rs.3,000/- per month. The appellants, therefore, claimed a total sum of Rs.5 lakhs by way of compensation from the respondents.

2. The respondents filed the written statement totally denying the accident. It was stated in the written statement that no accident whatsoever had taken place on the fateful day with the bus being driven by its driver and the deceased having not died because of the injuries sustained in the accident with the bus, there was no question of payment of any compensation by the respondents to the appellants. On the pleadings of the parties, the tribunal framed the following issues: -

(1) Whether Satish Kumar Kakkar died as a result of rash and negligent driving of Bus No. DHP- 2008 by Asluddin?

(2) Whether petitioners are legal representatives of the deceased?

(3) Whether petition is bad for non-joinder and misjoinder?

(4) To what amount of compensation are the petitioners entitled if so from whom?

(5) Relief.

3. While deciding the issue No.1, the tribunal relied upon the testimony of the eye-witnesses and held that the accident was caused due to the rash and negligent driving of the bus by its driver. It was held that the appellants being the widow and children of the deceased were competent to file application claiming compensation from the respondents. Taking the income of the deceased at Rs.2,000/- per month, the tribunal held that the loss of dependency to the family would not be more than Rs.1,200/- per month. Applying the multiplier of 16, the tribunal held that the appellants will be entitled to the total compensation of Rs.2,30,400/-. As already mentioned above, this award has now been challenged by the DTC by filing an appeal on the ground that no accident had taken placed with the bus. The claimants, namely, the wife and children of the deceased have filed appeal for enhancement of compensation awarded by the Tribunal.

4. The contention of Mr. Aggarwal, learned counsel appearing on behalf of the DTC is that no reliance should have been placed upon the testimony of the eye-witnesses inasmuch as they have contradicted themselves. It is contended that while PW-1, Anil Mittal had stated that at the time of the accident besides himself, the deceased and the bus there was no other traffic on the road, PW-6, Vijay Kumar Malhotra had stated that he had seen the accident. It is submitted that since PW-1 & PW-6 have contradicted themselves, no reliance could be placed upon the statement of anyone of them. It is also submitted that the Investigation Officer himself has stated that he could not find any eye-witness to the accident and there was thus no question of either Anil Mittal or Vijay Kumar Malhotra being eye-witnesses to the accident. It is submitted that both these witnesses have been asked to appear without their having seen the accident.

5. A perusal of the FIR shows that it was registered on the basis of the complaint made by PW-1-Anil Mittal. It also mentions that while the accident had taken place at about 9:25 p.m., the DD entry of the accident was made at about 10:25 p.m.. The Investigating Officer on the basis of the telephone received from PS Civil Lines had reached the spot. The information at PS Civil Lines was given by PW-1-Anil Mittal at about 9:25 p.m. itself. The fact that the FIR was registered at the instance of Anil Mittal immediately after the accident clearly shows that Anil Mittal was an eye-witness to the accident and the tribunal has, therefore, rightly relied upon his statement. Even assuming that PW-6 had not witnessed the accident and was a procured witness, the statement of PW-1, in any case, cannot be ignored. It is clearly stated by PW-1 that the deceased was going on his scooter ahead of him when all of a sudden a DTC bus being driven by its driver hit the scooter of the deceased from behind and then fled away from the scene. Since this witness was immediately behind the deceased, he after noticing the accident and that deceased was bleeding from head, reported the matter to the police. In cross-examination the testimony of this witness could not be shaken. Moreover, no passenger traveling in the bus at the relevant time has been produced to prove that the bus was not involved in any such accident. In such cases, the court is required to arrive at a finding about the involvement of the vehicle in accident on the basis of preponderance of evidence. As held by the Supreme Court in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and others etc. , accidents tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Says in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. The Tribunal, in my view, has, therefore, rightly relied upon the statement of this witness to come to a finding that accident was caused due to the rash and negligent driving of the bus by its driver. I do not find any illegality or infirmity in this finding, which may call for any interference by this Court.

6. The only other point argued by learned counsel for the parties is the quantum of compensation payable to the family of the deceased. The wife of the deceased has appeared as PW-18 (16). It is stated by her that the deceased used to give a sum of Rs.2,500/- per month for household expenses and he had also given her jewellery and had also purchased a house from out of his earnings and that house is with her and they are residing therein. It is stated by her that the income of her husband was much more, however, a sum of Rs.2,500/- per month was being given to her for meeting the household expenses. No question has been put to this witness in cross-examination by the DTC about the money being given by the deceased to her nor any suggestion has been given to her that the deceased was not paying Rs.2,500/- per month for meeting the household expenses. The only suggestion given is that the witness was exaggerating the amount of household expenses in order to get more compensation. The tribunal has relied upon the statement of PW-15-Sudesh Chopra to come to a finding that the income of the deceased could be taken to be Rs.2,000/- per month. This witness while stating that the deceased was earning Rs.5,000 to Rs.8,000/- has also stated that his shop was adjacent to the shop of the deceased and his own income was Rs.2,000/- to Rs.3,000/- per month. Tribunal on the basis of this evidence has held that since the shop of the deceased was adjacent to the shop of the witness, income of the deceased could safely be taken as Rs.2,000/- per month. Learned counsel for DTC submits that admittedly the deceased was not an income-tax payee and at the relevant time the income-tax was payable at an income of Rs.15,000/- to Rs.18,000/- per annum. It is submitted that since the deceased was not paying income-tax, his income could not be taken at more than Rs.15,000- per month.

7. I have heard learned counsel for the parties. I am afraid I am not in agreement with learned counsel for the appellant-DTC that the income of the deceased could not be taken at more than Rs.15,000/- per year. Firstly, there is nothing before the Court to hold that at the relevant time the income-tax was payable at an income of Rs.18,000/- per year. Even assuming that income-tax was payable at an income of Rs.18,000/- per year, no suggestion having been given to the wife of the deceased, that the deceased was not paying a sum of Rs.2,500/- per month to her by way of household expenses and having relied upon the statement of adjacent shopkeeper the tribunal has come to a finding that the income of the deceased could be taken to be Rs.2,000/- per month. I do not find any reason to interfere with this finding of the tribunal. Moreover, the deceased besides having purchased a flat from the income from the shop also owned scooter and had also given jewellery to his wife. He could, therefore, be taken to be a well off person and his income at the time of death taken by the tribunal to be Rs.2,000/- cannot be said to be on a higher side. The tribunal, in any case, has not taken into consideration the future prospects in the life and career of the deceased. The deceased was only 37 years of age and was doing well in business as is apparent from the statement of the witness. It is now well-settled that while assessing the compensation payable to the victims of the road accident, the courts and tribunal must take into consideration the future prospects in the life and career of the deceased. Relying upon the judgment of the Supreme Court in Sarla Dixit and another Vs. Balwant Yadav and others 1996 ACJ 581, this court will not be in error in estimating the average income of the deceased at Rs.3,000/- per month. The deceased had three children and was also supporting his wife and mother at the relevant time, in my view, therefore, the deceased would not have been spending more than 1/5th of his income on his own. Deducting 1/5th of the income of the deceased for his personal expenses, the loss of dependency to the family would come to Rs.2,400/- per month or say Rs.28,800/- per year. Applying the multiplier of 16 to the loss of dependency, the compensation payable to the family of the deceased would come to Rs.4,60,800/-. Adding to this the conventional figure of Rs.20,000/- towards loss of affection, loss of estate and funeral expenses, etc., the total compensation payable to the family of the deceased would come to Rs.4,80,800/- I, accordingly, allow the appeal of the claimants, modify the award and direct that the claimants, namely, the family of the deceased would be entitled to Rs.4,80,800/- by way of compensation. They will also be entitled to interest @ 9% per annum from the date of filing of the application before the tribunal till the date of realisation. The appeal filed by the DTC is dismissed. In the facts of the case, however, I leave the parties to bear their own costs.

8. Interim order passed earlier stands vacated.