Smt. Ram Murti Devi And Anr. vs Sh. Raj Kishore And Ors.
2005 Latest Caselaw 1288 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Appellants, mother and father of deceased Sanjiv Goyal seek enhancement of compensation in the present appeal. There are no cross objections and accordingly only issue which needs to be decided in the present appeal is whether compensation assessed and awarded is just and fair.

2. Deceased Sanjiv Goyal aged 21 years was driving a two wheel scooter on 1.1.1998. On Ring Road he was hit by a tempo driven by Raj Kishore and belonging to M/s. Pooja Enterprises. He was dragged for quite a distance. He died at the spot.

3. Sanjay was unmarried. He was carrying on business at Naya Bazar under the name and style of Tirupati Sales Corporation. As per the testimony of PW.4, deceased was contributing Rs. 10,000/- p.m. for the household expenditure by paying over the said sum to his mother.

4. At the trial, income tax returns of the deceased were exhibited at Ex.PW.4/1 to Ex.PW.4/6.

5. Taking note of the income tax return for the year 1998-1999 which shows an annual income of Rs. 63,273/- and in light of Ex.PW.4/4 being the assessment order passed for the year 1996-97, learned Tribunal held that the income of the deceased at the time of his death could safely be presumed to be Rs. 62,217 P.A. Deducting one-third i.e. Rs. 21000/- towards his personal expenses of the deceased, annual loss of dependency has been determined in sum of Rs. 32,270/- P.A.

6. At the outset it may be noted that the figures arrived at by the tribunal have mathematical errors.

7. Taking note of the fact that as on date of the award the claimants were 60 years of age, multiplier applied is 5. Accordingly loss of dependency has been determined at Rs. 1,61,350/-.

8. Rs. 2 lacs each on account of mental torture to the petitioners (appellants) and pain and suffering have been awarded besides Rs. 5000/- towards funeral expenses. Total award is accordingly, in sum of Rs. 5,67,000/-.

9. Learned counsel for the appellants urged that the Tribunal ignored the fact that the income tax return for the assessment year 1998-99 i.e. for the financial year 1.4.1997-31.3.1998, showing a gross total income of Rs. 63,273.55 was in respect of the income of the deceased till he died on 1.1.1998. Counsel urged that the said income was only for a period of 9 months. It was urged that the Tribunal erred in treating the same to be the annual income.

10. Counsel further urged that the deceased was aged 21 years, wrongly treated as 25 years in the award, benefit of increase in income in future years has not been granted. Counsel urged that in view of Ex.PW.4/1 to Ex.PW.4/6 it was obvious that the income of the deceased was increasing each year.

11. Further submission made by counsel for the appellants is that the learned Tribunal has taken the age of the appellants as 60 years from nowhere. Counsel urged as on date of accident, mother was 50 years and father was aged 58 years.

12. Opposing the enhancement, Shri Tripathi learned counsel for the respondent urged that the age of the parents was correctly taken. That principle of increase in salary was not applicable to estimated increase in income from business. That parents were entitled to pain and suffering and loss of love and affection due to death of their son under one head. By splitting, the Tribunal has awarded a sum of Rs. 2 lacs under each head. Counsel urged that the award was excessive. It was urged that no case for enhancement was made out.

13. A perusal of the record of the Tribunal reveals that in the claim petition, age of the mother has been stated to be 50 years and that of the father as 58 years. Appellant No. 2, father of the deceased examined himself as PW.4. His testimony was recorded on 3.11.2002. He stated his age to be 60 years and that of his wife as 45 years.

14. On the age, PW.4 has not been examined.

15. We do not therefore have any primary evidence on record as to what was the age of the parents of the deceased. However, in view of the fact that PW.4 was not cross-examined and keeping in view the age of the deceased it could not be said that statement of the father that he was aged 58 years when son died and was aged 60 years when he appeared as a witness is not worthy of credence. His statement that his wife was aged 45 years has to be ignored for the reason, in the claim petition age stated was 50 years.

16. As per the IInd schedule to the M.V. Act 1998, multiplier to be adopted is the age of the deceased or the claimant, whichever is higher. In the instant case, there are two claimants. Mother is aged 50 years and father is aged 58 years. Multiplier for the mother would accordingly be 8 and for the father 5. Since both are claimants, a fair and reasonable multiplier would be 7.

17. On the income of the deceased, the tax return for the financial year 1.4.1997-31.3.1998 was obviously filed after the deceased had died. Since income was shown for 9 months it hardly mattered for purposes of tax. When seen in light of the previous returns and in particular the return for the assessment year 1997-98, a one-third quantum jump in income stand reflected.

18. Assessment order pertaining to the assessment year 1996-97 shows income of the deceased as Rs. 45,660/-. Income for the assessment year 1997-98 is Rs. 48,030/-. The same stands increased to Rs. 63,270/- for the assessment year 1998-99. Possibility of the return pertaining to the assessment year 1998-99 being inflated cannot thus be ruled out for the reason, claimants were conscious of the fact that they had filed a claim petition in which income of the deceased would be relevant.

19. Considering the fact that the multiplier which is to be adopted in this case has been held to be 7, increase in income of the deceased over 7 years would have to be anticipated in the backdrop as aforenoted.

20. Taking into consideration that there was hardly any increase in income from the assessment year 1996-97 to the next assessment year i.e. 1997-98 it would be highly uncertain as to what would be the increase in the income of the deceased each year.

21. Assuming 5% increase in income each year, spread over 7 years, income would go up, gradually by a cumulative 35% by the end of the 7th year.

22. As noted above, learned Tribunal has proceeded on the income tax return, Ex.PW.4/6 for the assessment year 1998-99 which shows a quantum jump of one-third vis-a-vis the previous years. Notwithstanding that the same was for 9 months, but as noted above, possibility of the same being created to take benefit, as the claimants were aware that their claim petition was pending cannot be ruled out.

23. No books of accounts were produced at the trial to show what the actual income was.

24. If I take the income of the deceased at Rs. 50,000/- p.a. when he died (this sum is being taken into account by me in light of Ex.PW.4/4 and Ex.PW.4/5 being the income for the 2 previous years being Rs. 45,60/- and Rs. 48,030/-). I find that income of the deceased after 7 years would be approximately Rs. 68,000/-. Average mean annual income would be Rs. 59000/-.

25. Deducing one-third towards the personal expenses of the deceased, annual dependency would accordingly be Rs. 39,000/- (approximately). Loss of dependence would accordingly be Rs. 2,73,000/-.

26. I may note that as per the award learned Tribunal has made mathematical errors. Treating the income of the deceased as Rs. 62,217/- deducing Rs. 21000/- as one-third personal expenses of the deceased, annual loss of dependence has been worked out Rs. 35,270/-, figure would be Rs. 41,217/-.

27. Be that as it may, the loss of dependence on the multiplier of 7, as worked out above comes to Rs. 2.73 as against Rs. 1,61,350 awarded.

28. Appeal stands disposed of enhancing the compensation by a further sum of Rs. 1.12 lacs. Enhanced compensation shall be paid to the appellants together with interest @ 9% p.a. from the date of the claim petition till realisation.

29. No costs. LCR be returned.