Delhi High Court
Delhi Transport Corporation vs Ravi Kanta Nagpal on 8 February, 2007
Equivalent citations: 2007 ACJ 1990
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Vide F.A.O. No. 48 of 1991 D.T.C. has challenged the award dated 18.1.1991 pronounced by the M.A.C.T., Patiala House, New Delhi.
2. Only one issue has been urged. The same is that the evidence on the record establishes rash or negligent driving by the deceased and not by the driver of the bus. Alternatively, it is urged that contributory negligence is made out.
3. Vide F.A.O. No. 115 of 1991 claimants seek enhancement of compensation.
4. As the appeals were disposed of by an order of a kind which I fail to understand, inasmuch as, after recording that matter may be placed before the Lok Adalat, the appeals were restored as disposed of, the Registry returned the lower court record.
5. Needless to state, no appeal can be disposed of without awaiting a report from the Lok Adalat whether parties have settled the disputes.
6. If disputes are settled before the Lok Adalat, formal orders have to be passed disposing of the appeal in terms of the settlement. If settlement fails, the appeal has to be heard and decided on merits.
7. But, learned Counsel for the parties state that since two appeals pertain to the year 1991 and the accident took place on 24.8.1980, lower court record may not be summoned, as it would entail an adjournment.
8. Parties agree that photocopies or the certified copies of the evidence with learned Counsel may be noted by me.
9. Whatever record has been shown by the learned Counsel from their respective files has not been disputed by either party as not being a part of the record of the Tribunal.
10. Pertaining to the appeal filed by D.T.C, relevant facts are that the deceased Puran Chand was driving his two-wheeler scooter bearing registration No. DHJ 8508. On 24.8.1980, at around 4.15 p.m., proceeding towards his residence he approached Ring Road from General Post Office direction.
11. The road coming from GPO forms a T-junction at Ring Road.
12. Ring Road, along said stretch, has a road divider. At the T-junction, there is no road divider for the reason traffic coming from GPO and heading towards Yamuna Bridge has to cross over the carriageway of the Ring Road towards GPO to reach the other carriageway towards Nigambodh Ghat.
13. The scooter and the bus collided after the deceased had crossed the carriageway of the Ring Road towards GPO and had just about crossed over on to the side of the carriageway abutting Nigambodh Ghat when the two collided.
14. The D.T.C. bus No. DHP 2439 was being driven on the extreme right of the bisected road abutting Nigambodh Ghat.
15. This is one evidence which has been taken note of by the Tribunal to opine that the driver of the bus was negligent.
16. It is known to one and all that the rule of lane driving requires buses to drive on the extreme left of the road.
17. Site plan which was prepared by the police after the accident as also the photographs of the site which were taken were produced before the learned Tribunal. The learned Tribunal has noted that they reveal that after the bus hit the scooter, it dragged the driver. The bus stopped at a distance of approximately 35 ft from the place of the accident.
18. Post-mortem report showed 17 external injuries. The 16th injury was tyre marks on the body of the driver of the scooter, i.e., Puran Chand.
19. Multiple fractures on the ribs and both sides of the body as also emasculation of the muscles and the skin reveal that the deceased was dragged for considerable distance after the collision took place.
20. This is the second and third piece of evidence relied upon by the Tribunal to opine rashness on the part of the driver of the D.T.C. bus.
21. Further, mechanical inspection report of the scooter and the bus has been noted. The same reveals that the scooter was severely damaged. The impact of the scooter on the bus was at the right side tail end of the bus.
22. From the nature of damage suffered by the bus and the scooter, learned Tribunal has opined that the bus was obviously been driven at a very fast pace. As the scooterist nosed into the segment of the Ring Road towards the Nigambodh Ghat, the bus hit the scooterist.
23. A most telling circumstance which I notice is that the bus has stopped at a distance of approximately 35 ft from where the scooter is lying seen on the road as per photographs shown to me.
24. The further telling circumstance pertains to the tyre marks on the body of the deceased. The third telling circumstance is the injuries on the deceased which shows that he was dragged over a considerable distance.
25. Learned Counsel for D.T.C. urges that Ram Gopal Seth, PW 6, who was an eyewitness stated that the bus stopped a few steps after the collision took place.
26. I have perused the testimony of PW 6. He has categorically deposed and to quote from his language:
The bus touched the scooterist and pushed the scooter ahead towards its right after covering a few steps.
27. The learned Counsel for D.T.C. also draws my attention to the statement of the witness in cross-examination wherein he stated that the bus stopped at a distance of 3 to 4 paces after the accident.
28. PW 6 was an eyewitness. His testimony was recorded by the Claims Tribunal somewhere in the year 1982.
29. Accident took place on 24.8.1980. and 9 years respectively.
30. More often than not, people measure distances on their own estimations. 2 to 3 steps may convey 10 ft to a person who takes short steps. It may convey a longer distance to a person who takes long steps.
31. I need not trouble myself on the analysis of the testimony of PW 6 for the reason photographs of the site are before me.
32. In the teeth of the documentary evidence, namely, photographs of accident and the site plan, prominence has to be given to the same.
33. Even otherwise, it is not a material contradiction vis-a-vis the documentary and ocular evidence when PW 6 stated in examination-in-chief that the bus stopped after covering a few steps and in cross-examination stated that it stopped after 3 to 4 paces.
34. I am satisfied that the evidence on record has conclusively established rashness of the driver of the bus who is solely responsible for the accident in question. The speed can be gauged by the distance covered by the bus after hitting the scooter.
35. The driver of the bus had no business to drive the bus on the extreme right side of the road.
36. Turning to the appeal filed by the claimants seeking enhancement of compensation, I may note that as per the claimants who were wife and minor sons of the deceased, deceased was carrying on business as the sole proprietor of Murphy Industries. The widow stated that the deceased was earning between Rs. 4,000 and Rs. 5,000 per month. She deposed that when her husband died, her 2 sons were aged 12 years
37. Pertaining to the income generated from the business, she stated that the business commenced in the year 1968. That the business had flourished. Her husband was assessed to income tax. Assessment orders were placed on record and proved as Exh. PW 8/1 to Exh. PW 8/8.
38. Exh. PW 8/1, assessment order for the assessment year 1974-75 shows that the income of the deceased for the financial year 1973-74 was Rs. 6,168. Exh. PW 8/2, assessment order for the assessment year 1975-76 shows that the income of the deceased for the financial year 1974-75 was Rs. 6,430. Exh. PW 8/4, assessment order for the year 1977-78 shows that the income of deceased for the financial year 1976-77 was Rs. 13,220. Exh. PW 8/5, assessment order for the year 1978-79 shows that the income of the deceased for the financial year 1977-78 was Rs. 11,993. Exh. PW 8/6, assessment order for the year 1979-80 shows that the income of the deceased for the financial year 1978-79 was Rs. 14,800. Exh. PW 8/7, assessment order for the year 1980-81 shows that the income of the deceased for the financial year 1979-80 was Rs. 14,220. Exh. PW 8/8, assessment order for the year 1981-82 shows that the income of deceased for the financial year 1980-81 was Rs. 16,440.
39. Learned Counsel for the appellants contends that a perusal of the aforenoted assessment orders show that the income of the deceased was gradually increasing and thus there was a clear evidence before the Tribunal regarding the futuristic income of the deceased. Learned Counsel submitted that Tribunal erred in ignoring futuristic income of the deceased while determining the income of the deceased at the time of his death.
40. Relying upon decision in Sarla Dixit v. Balwant Yadav and various other decisions of Supreme Court and this Court, the learned Counsel submits that future prospects had to be considered and granted.
41. The question is, whether the sum awarded by the Tribunal is on the lower side as claimed by the appellants?
42. In a fatal accident action, the accepted measure of damages awarded to the dependants is the pecuniary loss suffered by them as a result of the death. 'How much has the widow and family lost by the death?'
43. The assessment of damages to compensate the dependants is beset with many difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.
44. One of the two methods adopted to determine compensation in fatal accident actions is the multiplier method mentioned in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601.
45. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest applicable to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. Since the dependants can invest their damages, the lump sum awarded in respect of future loss must be discounted to reflect interest on invested funds, the intention being that the dependants will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies.
46. Thus, the compensation awarded by way of multiplier method takes care of future prospects. In the instant case, Exh. PW 8/8, assessment order for the assessment year 1981-82 shows that the annual income of the deceased for the financial year 1980-81 was Rs. 16,440. As the date of accident is 24.8.1980,I take annual income of deceased as Rs. 16,440. Considering that the family of the deceased consists of wife and two sons, I deduct 1/3rd on account of personal expenses of the deceased. Thus loss of dependency is assessed as Rs. 10,960 per annum. I increase the same by 10 per cent each year. I take interest on the capital at the rate of 12 per cent per annum from 1980-89 and 10 per cent per annum for the period 1989-96 and thereafter at the rate of 8 per cent per annum for the period 1996-2010. Annual interest is shown in column 4. Annual loss of dependency in column 5 and excess/shortfall of interest over annual dependency in column 6. The statement comes to as under:
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S. Year Money in Interest Loss of Excess of
No. capital (12 per cent dependency interest over
account for 1980-89, (assuming dependency
10 per cent 10 per cent
for 1989-96, increase
8 per cent for every year)
1996-2010)
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1. 1980-81 Rs. 2,64,000 Rs. 31,680 Rs. 10,960 Rs. 20,720
2. 1981-82 Rs. 2,84,720 Rs. 34,166 Rs. 12,056 Rs. 22,110
3. 1982-83 Rs. 3,06,830 Rs. 38,620 Rs. 13,262 Rs. 23,558
4. 1983-84 Rs. 3,30,338 Rs. 39,647 Rs. 14,558 Rs. 25,059
5. 1984-85 Rs. 3,55,447 Rs. 42,654 Rs. 16,047 Rs. 26,607
6. 1985-86 Rs. 3,82,053 Rs. 45,846 Rs. 17,652 Rs. 28,194
7. 1986-87 Rs. 4,10,248 Rs. 49,230 Rs. 19,417 Rs. 29,813
8. 1987-88 Rs. 4,40,060 Rs. 52,807 Rs. 21,359 Rs. 31,448
9. 1988-89 Rs. 4,71,509 Rs. 56,581 Rs. 23,495 Rs. 33,086
10. 1989-90 Rs. 5,04,595 Rs. 50,459 Rs. 25,845 Rs. 24,614
11. 1990-91 Rs. 5,29,209 Rs. 52,921 Rs. 28,430 Rs. 24,491
12. 1991-92 Rs. 5,53,700 Rs. 55,370 Rs. 31,273 Rs. 24,097
13. 1992-93 Rs. 5,77,797 Rs. 57,780 Rs. 34,440 Rs. 23,340
14. 1993-94 Rs. 6,01,137 Rs. 60,114 Rs. 37,840 Rs. 22,274
15. 1994-95 Rs. 6,23,410 Rs. 62,341 Rs. 41,624 Rs. 20,717
16. 1995-96 Rs. 6,44,127 Rs. 64,413 Rs. 45,786 Rs. 18,627
17. 1996-97 Rs. 6,62,754 Rs. 53,020 Rs. 50,365 Rs. 2,655
18. 1997-98 Rs. 6,65,409 Rs. 53,233 Rs. 55,402 (-)Rs. 2,169
19. 1998-99 Rs. 6,63,240 Rs. 53,059 Rs. 60,942 (-)Rs. 7,883
20. 1999-00 Rs. 6,55,357 Rs. 52,429 Rs. 67,036 (-)Rs. 14,607
21. 2000-01 Rs. 6,40,750 Rs. 51,260 Rs. 73,740 (-)Rs. 22,480
22. 2001-02 Rs. 6,18,270 Rs. 49,462 Rs. 81,114 (-)Rs. 31,652
23. 2002-03 Rs. 5,86,617 Rs. 46,929 Rs. 89,225 (-)Rs. 42,296
24. 2003-04 Rs. 5,44,322 Rs. 43,546 Rs. 98,148 (-)Rs. 54,602
25. 2004-05 Rs. 4,89,720 Rs. 39,178 Rs. 1,07,963 (-)Rs. 68,785
26. 2005-06 Rs. 4,20,934 Rs. 33,675 Rs. 1,18,759 (-)Rs. 85,084
27. 2006-07 Rs. 3,35,850 Rs. 26,868 Rs. 1,30,635 (-)Rs. 1,03,767
28. 2007-08 Rs. 2,32,083 Rs. 18,567 Rs. 1,43,699 (-)Rs. 1,25,132
29. 2008-09 Rs. 1,06,951 Rs. 8,556 Rs. 1,58,059 (-)Rs. 1,49,513
30. 2009-10 (-)Rs. 42,562 (-)Rs. 3,405 Rs. 1,73,876 (-)Rs. 1,77,281
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47. A perusal of the Table shows that till the 17th year, there is excess of interest over dependency. The excess interest has been capitalised for the next year. After 17 years, the capital is eroded and stands completely eroded in the 30th year.
48. The deceased was aged 33 years at the time of his death. Had the deceased not met with an untimely death, he would have been aged 63 years after 30 years. Normal retirement age in India is 60 years. It could reasonably be expected that by the time deceased turned 60, he would have stopped earning. The Table shows that the compensation awarded to the dependants of the deceased will last till the time deceased would have turned 63 years had he been alive.
49. I note that the family of the deceased consists of a wife and two sons. The two sons were aged 12 years and 9 years respectively at the time of the accident. By 10th year, both sons would have attained majority and would be in a position to maintain themselves. It can reasonably be expected that by the 12th year deceased would have spent at least half of his income on himself had he been alive. Thus, after the 12th year, loss of dependency would have decreased. If the above Table is reworked, it will reveal that compensation awarded to the dependants would last till the time deceased would have turned around 70 years had he been alive.
50. In the case of Reshma Kumari v. Madan Mohan F.A.O. No. 184 of 1992; decided on 8.2.2007, similar calculations were made by me. In that case, deceased died in a road accident on 3.9.1987. He was a government employee and still had a service of 25 years left at the time of his death. Loss of dependency to dependants of the deceased was assessed as Rs. 1,344 per month. Again, wages were increased by 10 per cent each year. Interest of the capital was taken at the rate of 12 per cent per annum for 1987-95, 10 per cent for the period 1995-02 and thereafter at the rate of 8 per cent per annum for the period 2002-12. Annual interest is shown in column 4. The annual loss of dependency in column 5 and excess/shortfall of interest over annual dependency in column 6. The statement worked out is as under:
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S. Year Money in Interest Loss of Excess of
No. capital (12 per cent dependency interest over
account for 1987-95, (assuming dependency
10 per cent 10 per cent
for 1995-02, increase
8 per cent for every year)
2002-12)
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1. 1987-88 Rs. 3,36,000 Rs. 40,320 Rs. 1,344 x 12 = Rs. 24,192
Rs. 16,128
2. 1988-89 Rs. 3,60,192 Rs. 43,223 Rs. 1,478 x 12 = Rs. 25,487
Rs. 17,736
3. 1989-90 Rs. 3,85,679 Rs. 46,281 Rs. 1,625 x 12 = Rs. 26,781
Rs. 19,500
4. 1990-91 Rs. 4,12,461 Rs. 49,495 Rs. 1,787 x 12 = Rs. 28,051
Rs. 21,444
5. 1991-92 Rs. 4,40,512 Rs. 52,861 Rs. 1,965 x 12 = Rs. 29,281
Rs. 23,580
6. 1992-93 Rs. 4,69,793 Rs. 56,375 Rs. 2,161 x 12 = Rs. 30,443
Rs. 25,932
7. 1993-94 Rs. 5,00,236 Rs. 60,028 Rs. 2,376 x 12 = Rs. 31,516
Rs. 28,512
8. 1994-95 Rs. 5,31,753 Rs. 63,810 Rs. 2,613 x 12 = Rs. 32,454
Rs. 31,356
9. 1995-96 Rs. 5,64,207 Rs. 56,421 Rs. 2,874 x 12 = Rs. 21,933
Rs. 34,488
10. 1996-97 Rs. 5,86,140 Rs. 58,614 Rs. 3,161 x 12 = Rs. 20,682
Rs. 37,932
11. 1997-98 Rs. 6,06,822 Rs. 60,682 Rs. 3,476 x 12 = Rs. 18,970
Rs. 41,712
12. 1998-99 Rs. 6,25,792 Rs. 62,579 Rs. 3,823 x 12 = Rs. 16,703
Rs. 45,876
13. 1999-00 Rs. 6,42,495 Rs. 64,250 Rs. 4,205 x 12 = Rs. 13,790
Rs. 50,460
14. 2000-01 Rs. 6,56,285 Rs. 65,628 Rs. 4,625 x 12 = Rs. 10,128
Rs. 55,500
15. 2001-02 Rs. 6,66,413 Rs. 66,641 Rs. 5,087 x 12 = Rs. 5,597
Rs. 61,044
16. 2002-03 Rs. 6,72,010 Rs. 53,761 Rs. 5,595 x 12 = (-) Rs. 13,379
Rs. 67,140
17. 2003-04 Rs. 6,58,631 Rs. 52,960 Rs. 6,154 x 12 = (-) Rs. 21,558
Rs. 73,848
18. 2004-05 Rs. 6,37,474 Rs. 50,998 Rs. 6,769 x 12 = (-) Rs. 30,230
Rs. 81,228
19. 2005-06 Rs. 6,07,244 Rs. 48,579 Rs. 7,445 x 12 = (-) Rs. 40,881
Rs. 89,340
20. 2006-07 Rs. 5,66,363 Rs. 45,309 Rs. 8,189 x 12 = (-) Rs. 52,959
Rs. 98,268
21. 2007-08 Rs. 5,13,404 Rs. 41,072 Rs. 9,007 x 12 = (-) Rs. 67,012
Rs. 1,08,084
22. 2008-09 Rs. 4,46,393 Rs. 35,711 Rs. 9,907 x 12 = (-) Rs. 83,173
Rs. 1,18,884
23. 2009-10 Rs. 3,63,220 Rs. 29,058 Rs. 10,897 x 12 = (-) Rs. 1,01,706
Rs. 1,30,764
24. 2010-11 Rs. 2,61,514 Rs. 20,291 Rs. 11,986 x 12 = (-) Rs. 1,22,911
Rs. 1,43,832
25. 2011-12 Rs. 1,38,603 Rs. 11,088 Rs. 13,184 x 12 = (-) Rs. 1,47,120
Rs. 1,58,208
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51. A perusal of the Table shows that till the 15th year, there is excess of interest over dependency. The excess interest has been capitalised for the next year. Again, what is revealing is that even at the end of 25th year, a sum of Rs. 1,38,603 is still left in the capital account.
52. I find no merit in the contention of learned Counsel for the appellant-claimant that while awarding compensation to the appellant the Tribunal had ignored the futuristic income of the deceased. The Table in para 46 clearly shows that the compensation awarded by way of multiplier method by the Tribunal is just fair and reasonable.
53. Lastly, the counsel for the appellant submits that the Tribunal erred in awarding no compensation to the appellant towards non-pecuniary damages.
54. I agree with the said submission made by learned Counsel for the appellant. Accordingly, I award conventional damages on account of loss of consortium to the wife, father's love and affection to the children at Rs. 15,000. Funeral expenses are awarded in sum of Rs. 2,000.
55. Net effect is that the compensation stands enhanced by Rs. 17,000.
56. I accordingly modify the award pertaining to Suit No. 51 of 1981 by enhancing the compensation by a sum of Rs. 177000. The enhanced compensation shall be paid to the appellant together with interest at the rate of 6 per cent per annum from date of the claim petition till date of realisation.
57. F.A.O. No. 48 of 1911 is dismissed. F.A.O. No. 115 of 1991 is allowed as per para 56 above.
58. No costs.
