Kamlawati And Ors. vs Brij Mohan And Anr.
2005 Latest Caselaw 1321 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Suraj Bhan met with an accident on 29.1.2001 at about 4.00 P.M. at Burari Chowk. His parents, wife and 5 minor daughters filed a claim before the Tribunal. Holding the driver of the offending truck guilty of causing death of Suraj Bhan by driving the truck rashly and negligently, tribunal proceeded to assess the compensation payable to the claimants.

2. In the present appeal, I am only concerned with the compensation assessed as the claimants seek enhancement of the compensation. There are no cross-objections by the owner, driver or the insurer of the vehicle.

3. Taking note of the fact that the deceased was a driver by profession, tribunal held that minimum salary which the deceased would be earning in the year 2001 could reasonably be expected to be Rs. 3,000/-. Age of the deceased being 30 years, tribunal opined that by the time deceased would have left gainful employment, it could reasonably be assumed that he would be earning Rs. 5,000/- per month. The gross average monthly salary of the deceased was accordingly taken at Rs. 4,000/-. Deducting 1/3rd towards the personal expenses of the deceased and applying the multiplier 14, dependency in sum of Rs. 4,53,600/- was determined. Rs. 6,400/- has been paid towards funeral expenses of the deceased. Total award is in sum of Rs. 4.6 lakhs. Interest @ 9% per annum from date of filing of the petition till date of realization has been ordered.

4. Sum has been apportioned between the claimants as per the concluding paragraphs of the award.

5. Learned counsel for the appellants stated that the Tribunal erred in assessing the monthly income of the deceased when he died at Rs. 3,000/- per month. Additionally it was urged that future increase in income should have been taken to be at least double for the reason deceased was aged 30 years and being a driver, it was reasonably expected that he would have remained gainfully employed till he attained the age of 60 years. On 1/3rd deduction towards the personal expenses of the deceased, counsel urged that considering that the deceased was maintaining 2 aged parents, wife and 5 daughters, it could not be expected that deceased would be spending 1/3rd of his income on self.

6. Per contra, counsel for respondent No. 3 urged that in view of the testimony of appellant No. 1, wife of the deceased, finding that the deceased was spending 1/3rd of his income on self is correct, as also finding an income.

7. Learned counsel for the respondent drew attention to the cross-examination of appellant No. 1 who appeared as PW-3 wherein she stated that the deceased used to give her Rs. 2,000/- to Rs. 3,000/- every 2 to 3 months.

8. In response, learned counsel for the petitioner submitted that appellant No. 1 was from a rural background. She was over-awed by the ambiance of the court. What she actually wanted to convey was that her husband used to visit the family in the village every 2/3 months and that he would give her expenses of Rs. 2,000/- to Rs. 3,000/- per month. She mixed up everything and stated that her husband used to visit her every two to three months and used to give her Rs. 2,000/- to Rs. 3,000/-.

9. A perusal of the award shows that the learned Tribunal has taken note of this statement of appellant No. 1. The learned Tribunal has held that notwithstanding the manner in which appellant No. 1 has deposed, not much weightage could be given to the said statement because admittedly, from the income of the deceased, his 5 daughters, wife and 2 parents were maintaining themselves. I concur with the said part of the reasoning adopted by the Tribunal.

10. Record of the Tribunal would show that Sh. Harinder Kumar appeared as PW-1. He deposed that the deceased was employed with him as a driver and was driving his Tata 407 No. DL-1LC-7988. He stated that he used to pay deceased Rs. 4,500/- p.m. as salary.

11. The Tribunal has held that it was a matter of common knowledge that in the year 2001, drivers were earning Rs. 3,000/- per month. But in my view the tribunal has omitted to consider that the deceased was a driver of light commercial vehicle, drivers whereof earn higher wages than the drivers of passenger motor vehicles other than heavy duty buses. In my opinion, there was no reason to doubt the testimony of PW.1, notwithstanding that he failed to produce the documentary evidence of the wages paid.

12. PW-1 was not running a huge industry. He appears to be a small time transporter. It is not uncommon in India that in the unorganized sector accounts are not being maintained as per accountancy norms.

13. In the teeth of the evidence, it would not be an unjust premise to hold that it could safely be presumed that the deceased was earning Rs. 4,000/- per month. Considering the age of the deceased, being 30 years, drivers being entitled to serve even in the government sector till the age of 60 years, it could reasonably be presumed that the deceased would have remained gainfully employed till the age of 60 years and his wages would have doubled. The mean average monthly income of the deceased accordingly comes to Rs. 6,000/-.

14. Considering that the deceased had an extended family consisting of two aged parents, wife and 5 minor daughters and considering that the family was in the village and that the deceased was maintaining a separate kitchen for himself at Delhi, it could safely be assumed that the deceased was spending 1/4th of income on self. Thus, monthly loss of dependency to family comes to Rs. 4,500/- per month. Annual loss of dependency is accordingly Rs. 54,000/-.

15. Considering the age of the deceased, 30 years, the age of his widowed wife being less than 30 years and that there were 5 minor daughters who would have remained dependent upon the deceased till they got married as also the fact that 2 aged parents would have remained dependent on the deceased for at least another 10 years, in my opinion, a fair and proper multiplier which need to be adopted is 16.

16. The compensation payable to the appellants towards loss of dependency accordingly comes to Rs. 54000 x 16 = Rs. 8,64,000/-. I find that nothing has been paid towards loss of consortium to the wife and loss of father's love to the daughters and sons, loss of love and affection to the parents. I award Rs. 50,000/- under said heads cumulatively. Total compensation assessed accordingly comes to Rs. 9,14,000/-. Rs. 6,400/- have been awarded towards funeral expenses. I maintain the same.

17. Appeal stands disposed of enhancing the compensation by another Rs. 3,60,400/-. Enhanced compensation shall be paid in the same ratio as per the award. It shall carry interest @ 9% P.A. from date of claim petition till payment. The share of the minor daughters would be invested in a FDR in their names till the period they attain majority. Interest would, however, be paid to appellant No. 1.

18. Appellants would be entitled to cost in sum of Rs. 10,000/-.