Shri Bhagwant Singh And Anr. vs Mangat Ram And Ors.
2004 Latest Caselaw 1061 Del

JUDGMENT

R.S. Sodhi, J.

1. CM 8164/2004 (early hearing):

Application is allowed and disposed of. The matter is taken up for hearing today.

FAO 143/1998

2. FAO 143/1998 is directed against the judgment and order of the Motor Accident Claims Tribunal in Suit No.4/1988 whereby the learned tribunal vide its order dated 5.12.1997 has awarded a sum of Rs.78,000/- together with the interest at the rate of 8% from the date of filing of the petition till the date of realisation.

3. The facts of the case are :

"2. The petitioners claimed to be the parents of Rajesh Kumar, a 22 years old youth who is stated to have died on 11.11.87 on account of an accident that is stated to have taken place at Rambagh, G.T.Karnal Road, Delhi within the jurisdiction of P.S.Alipur at 4.15 p.m. It is alleged the deceased Salesman of Biscuits etc. with an income of Rs.1,000/- p.m. was moving on his cycle at slow speed on correct side of the road when the truck came in high speed in rash/negligent manner from opposite direction and hit against the cycle, resulting in the cyclist receiving multiple injuries and dying as a result. The petitioners claimed Rs.15.00 lacs as compensation besides Rs.15,000/- under section 92-A of Motor Vehicles Act (old Act).

3. Respondent No.1 and 2 in their written statement jointly filed on 17.1.89 admitted the factum of respondent no.1 being the driver of the truck at the relevant time. It also disclosed the title of the truck vesting in respondent no.2 and 2-A. The facts relating to accident are denied and therefore, liability was disputed. It was claimed the vehicle was insured as per particulars already furnished. Respondent no.2-A on being imp leaded and summoned took up identical pleadings through his separate written statement filed on 14.12.89. Respondent no.3 on its part claimed the vehicle was owned by respondent no.2 and 2-A, but it was not insured in the name of respondent no.2. Admitting the facts to the above effect, facts relating to accident were also disputed and the claim termed as exaggerated. The insurance company took up a specific plea to the effect that the truck was driven by a person who was not holding a valid driving license. The insurance company thus sought to be absolved. On the aforesaid pleadings, my learned predecessor put the case to trial through following issues framed on 25.1.90 :-

Issues

1. Whether the death of Shri Rajesh Kumar resulted from the accident as alleged by the petitioners arising out of the use of truck PBH 3260 on 11.11.87 at 4.15 p.m. at the Ram Bagh, G.T.K.Road, Delhi ?

2. Whether the petition is not maintainable in view of preliminary objection raised in the W.S. By respondent no.3 ?

3. Whether the petitioners are the only Lrs of the deceased Rajesh Kumar ?

4. Whether the deceased suffered fatal injuries in an accident on 11.11.87 caused due to rash and negligent driving of truck PBH 3260 on the part of respondent no.1.?

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

6. Relief."

4. It is contended by the learned counsel for the petitioner that the tribunal has gone wrong in holding that the petitioner was earning a sum of Rs.750/- per month being the minimum wages at the time of accident. He submits that the tribunal is wrong while adverting to the facts of the case that the the deceased was earning Rs.1000/- per month when it was clearly mentioned that he was earning Rs.1500/- per month. He submits that in view of the evidence based on record, namely, PW-3 Bhagwant Singh as also PW-4 Sees Ram, there was no occasion to disbelieve them and therefore, income of the deceased should be taken as Rs.1500/- per month. He contends that 50% deduction on account of personal expense is far too high and relies upon the judgment of the Supreme Court in Gyan Chand Vs.Prem Chand 2003(1) TAC 490, where the Supreme Court has held that in an accident of this type, one third deduction on account of personal expense can be made and there is no need to go into future prospects. Counsel next contends that the tribunal has gone wrong in applying multiplier of ten when mother's age was proved to be 40 years in which event multiplier of 16 ought to have been applied. He also contends that 8% interest is on the lower side.

5. No one appears on behalf of owner and driver. Counsel appearing for the Insurance Company contends that since there was no actual evidence on record to show the earnings of the deceased, the tribunal has rightly taken into consideration the minimum wages while computing the earning. He also submits that the deceased who was 22 years of age was in all likelihood spending 50% of his income for his personal expense and there was nothing wrong in the tribunal's order to that effect. He further admits that the multiplier of ten applied was on the lower side and submits that the same should of fourteen since the father of the deceased was 45 years of age. He contends that the interest as awarded should not be interfered with since it has been awarded on reasonable basis.

6. Heard counsel for the parties and have gone through the judgment and also the material available on record. It appears to me that PW-3 has categorically stated that the deceased was earning a sum of Rs.1500/- per month which amount he was giving to the parents while PW-4 testifies that the deceased used to make purchases of goods worth Rs.3300/- per week. From this it can safely be inferred that the petitioner was earning a sum of Rs.1500/- per month. There was no reason why the witnesses should have been disbelieved and the minimum wages applied. I therefore, hold that he was earning Rs.1500/- per month. On the question of multiplier, the age of the mother was 40 years and the multiplier of sixteen is the correct multiplier, that could have been applied. As regards, the deductions on account of personal expenses, the Supreme Court in Gyan Chand Vs.Pram Chand 2003(1) TAC 490, has laid down that one third can be deducted for personal expenses.

7. Having given my careful consideration to the matter and re-assessed the material on record, I modify the award dated 5th December, 1997 by holding that the deceased was earning a sum of Rs.1500/- per month and that one third could be deducted for personal expenses which would come to Rs.1000/- and the multiplier of sixteen is the appropriate one in view of the age of the mother of the deceased. Therefore, the total amount would be 1000 x 12 x 16 which comes to Rs.1,92,000/-. Addition to this is the sum of Rs.2000/- towards funeral expenses, Rs.2500/- towards loss of estate and Rs.5000/- on account of love and affection. The total would be Rs.2,01,500/-. As regards the interest, I deem it appropriate that the interest awarded by the tribunal is just and proper in the facts and circumstances of the case

8. The enhanced amount shall carry the same interest as awarded from the date of the filing of the petition till the date of realisation. In the present case since the tribunal has held that the driver of the vehicle did not have a valid license, the insurance company would be liable to satisfy the award in the first instance. It may, however, recover the same from the owner or/and the driver in accordance with the judgment of the Supreme Court in National Insurance Company Ltd. Vs. Swaran Singh & Ors,2004 (1) Accident Claim Tribunal, page 1.

The amount of compensation awarded shall be deposited by the Insurance Company before the tribunal within a period of six weeks.

FAO 143/1998 is allowed accordingly.