U.P. State Road Transport ... vs Sarita Tyagi And Ors.
2007 Latest Caselaw 114 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Vide F.A.O. No. 105 of 1989, U.P. State Road Transport Corporation challenges the award dated 13.10.1987 made by the M.A.C.T. Judge Mr. T.D. Kashav in Suit No. 53 of 1985. Vide Cross-Objection No. 2399 of 1989 filed in F.A.O. No. 105 of 1989, claimants seek enhancement of the compensation awarded.

2. Notwithstanding the cross-objections filed, independent appeal registered as F.A.O. No. 130 of 1988 has also been filed by the claimants.

3. The deceased Ram Kumar, aged 29 years, was proceeding on a motor cycle as a pillion rider. Number of motor cycle being DPW 601. Coming from behind, a bus owned by the appellant bearing No. USY 7163 hit the motor cycle from behind. The time was 6.10 p.m. The date was 28.3.1981. Ram Kumar died.

4. He was survived by his widow Sarita Tyagi, two minor sons, Sunil and Sandeep. One minor daughter, Sangeeta and his parents Balram and Krishna. All the six jointly filed a claim petition.

5. Holding that the evidence on record established rash and negligent driving by the driver of the bus who was imp leaded as respondent No. 2 in the claim petition, learned Tribunal has opined that monthly income of the deceased was Rs. 800. Loss of dependency to the family has been taken at Rs. 400 per month. Applying the multiplier 20, compensation assessed to the family is Rs. 96,000.

6. The same has been appropriated by granting Rs. 40,000 to the widow Sarita Tyagi, Rs. 16,000 each to the three minor children and Rs. 4,000 each to the parents.

7. Raising a challenge to the finding pertaining to issue No. 1 whereunder the learned Tribunal has discussed the cause of accident, learned Counsel for U.P.S.R.T.C. states that the cause of the accident was actually a truck which was ahead of the motor cycle in question. It is stated that the truck suddenly applied brakes. The motor cycle hit the truck. Deceased got injured when as a result of the motor cycle hitting the truck, it tilted on to one side resulting in the deceased falling with an impact on the ground and sustained injury as a result thereof.

8. PW 2, PW 3 and PW 5 examined before the Tribunal are eyewitnesses to the accident. The evidence of the said three witnesses shows that no such theory was propounded when PW 2 and PW 3 were cross-examined. This theory has been propounded only when PW 5 was examined. Needless to state, he denied the same.

9. Learned Tribunal has duly noted this new version introduced by U.P.S.R.T.C. only when PW 5 was being cross-examined.

10. I have perused the testimony of PW 2, PW 3 and PW 5.

11. Indeed, no such theory was put in cross-examination when PW 2 and PW 3 were cross-examined. It was introduced only when PW 5 was being cross-examined.

12. PW 5 has denied the suggestion.

13. All the eyewitnesses have constantly maintained that the offending bus hit the motor cycle from behind.

14. The three eyewitnesses have been subjected to cross-examination and their testimony has not been shattered.

15. I, therefore, do not agree with the submissions made by learned Counsel for U.P.S.R.T.C. that the finding returned by the Tribunal against his client pertaining to the manner in which the accident took place is incorrect.

16. Dealing with issue of compensation assessed, needless to state, not much can be urged on behalf of U.P.S.R.T.C. notwithstanding vague grounds being urged pertaining to the compensation assessed.

17. On the contrary, for reasons recorded hereinafter, compensation assessed as loss of dependency is inadequate.

18. Wife of the deceased stated that the deceased was self-employed, engaged in the business of selling building material. She stated that the deceased had an income of Rs. 3,000 per month. Her testimony has been disbelieved by the Claims Tribunal on account of the fact that as of the year 1981 when the deceased died, income tax laws required filing of a return where taxable income was more than Rs. 15,000 per annum.

19. It is unfortunate that it is a habit in India for people not to pay the taxes and as in this case, when cloudy days come, the family is left without an adequate cover.

20. Unfortunately, the deceased appeared to be a person who went along with the mood of the nation and did not believe in paying taxes.

21. Approach of the Tribunal therefore cannot be faulted. But, the problem lies in the next step taken by the Tribunal.

22. Learned Tribunal has held that in its opinion the deceased might be earning Rs. 800 per month.

23. This is a presumptive finding, in fact, recorded as an opinion of the Tribunal for the reason, the Tribunal has expressed itself in the following words:

In my opinion, the deceased might be earning Rs. 800 per month from his business.

24. Why Rs. 800 per month? Why not Rs. 15,000 per annum?

25. Either answer would be speculative and an opinion. If the deceased was earning Rs. 15,000 per annum, he was not required to file any income tax return. On what basis should one hold that deceased was not earning Rs. 15,000 per annum.

26. The year of the accident is 1981. The deceased was maintaining as also sustaining, beside himself, 6 family members, being his widow, 2 sons, a daughter and parents.

27. The wife says that her husband was giving her Rs. 1,500 per month. There is no evidence on record that the family was living in penury. Keeping in view the minimum levels of sustenance in the year 1981, assuming that a sum of Rs. 100 per month was being spent on the ration per family member and another Rs. 100 per month on account of other expenses, it would be safe to presume that the deceased was earning if not more, around Rs. 15,000 per annum.

28. With the kind of records people maintain in India or especially in the lower strata of society, it is impossible to get clinching evidence to find the income. Poverty index issued by the Ministry of Finance and the reports of economists to show the average income per family in India could form some guiding indicator for the courts to follow.

29. The study of biology and nutrition guides us that an adult male needs 2000 calories per day to sustain himself. An adult female needs 1500 calories to sustain herself. A child needs between a 1000 and 1200 calories per day. Linkage between the minimum energy requirement of the body with the prices of food, would form a guiding factor to determine the earnings of a family.

30. I accordingly treat that the deceased was earning Rs. 15,000 per annum.

31. The deceased was aged 32 years. He had another 28 years of earning lifespan left, assuming he would have earned his bread and butter till he attained the age of 60 years.

32. Cost indices notified by the government under the All India Consumer Price Index as also increased minimum wages show the indices and minimum wages doubling every decade. It would be safe to presume that at the time deceased ceased to be in gainful activity, he would have been earning Rs. 30,000 per annum. Average mean yearly income of the deceased is accordingly fixed at Rs. 22,000.

33. Learned Tribunal has treated half income of the deceased as personal expenses. Learned Tribunal has treated monthly income of the deceased at Rs. 800.

34. For a person who is maintaining a family of besides himself, wife, three minor children and parents, it is impossible to believe that half income would be spent on self that too when the Tribunal has treated the monthly income of the deceased at Rs. 800.

35. I have held that average mean income of the deceased was Rs. 22,000 per annum. Considering the extended family, I deduct 1/5th of the income as the personal expenses of the deceased. Loss of dependency to the family accordingly comes to Rs. 17,600 per annum.

36. Applying the multiplier of 18 as against 20 granted by the Tribunal, loss of dependency comes to Rs. 3,16,800.

37. Noting that nothing has been awarded for loss of consortium to the wife, loss of love and affection of the father to the children and pain and suffering of the aged parents who have lost an earning son, taking note of the fact that the accident relates to the year 1981, I award conventional sum of Rs. 15,000 under said head to the family. Total sum awarded therefore comes to Rs. 3,31,800.

38. Under the award, Rs. 96,000 has been awarded. The award is accordingly enhanced by a further sum of Rs. 2,35,800.

39. The enhanced sum awarded would be paid over to the legal heirs of the deceased, i.e., the wife and three children, noting that the parents have since died.

40. Enhanced compensation shall be paid together with interest at the rate of 6 per cent per annum from date of the claim petition till date of realisation.

41. Distribution of the amount would be as under:

  (a) Sarita Tyagi (widow)            Rs. 1,00,000
(b) Sangeeta (daughter)             Rs.   50,000
(c) Sunil and 
    Sandeep (sons)                  Rs.   42,900
                                          (each)

 

42. The two appeals and the cross-objections stand disposed of as aforesaid.
 

43. No costs.