Smt. Gulab Wati vs Rajbir Singh & Anr.
2008 Latest Caselaw 1097 Del

         * HIGH COURT OF DELHI : NEW DELHI

                      MAC APP.No.145 of 2007

%                     Judgment reserved on:16th July, 2008

                      Judgment delivered on:22nd July, 2008

Smt.Gulab Wati
W/o Late Shri Shiv Lal Gupta
R/o C-215, Dakshinpuri,
New Delhi.                        ..... Appellants
                Through: Mr.Purushottam Kumar, Adv.

      Versus

1.Rajbir Singh, S/o Shri Kirpa Ram
R/o Village Kheri Sandh,
P.S.Sampala,
Distt. Rohtak,
Haryana, Badge No.19769

Through the Manager, Depot-I
DTC Okhla Phase-1,
New Delhi-110065.

2.Chairman
DTC, I.P.Estate
New Delhi.                                ....Respondents
                      Through: Mr.J.N.Aggarwal, Adv. for DTC.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Yes

2. To be referred to Reporter or not?                         Yes

3. Whether the judgment should be reported


MAC App.No.145/2007                                Page 1 of 7
      in the Digest?                                        Yes


V.B.Gupta, J.

Appellant who is legal heirs of deceased Chander

Bhan Gupta, has filed the present appeal against the

judgment and award dated 18th November, 2006 passed by

Ms. Sukhvinder Kaur, Judge, MACT seeking enhancement

of the award amount.

2. Vide impugned judgment, the learned Tribunal has

awarded a sum of Rs.1,65,400/- to the appellant as

compensation along with interest @ 7.5% per annum from

the date of the filing of the petition, that is, 21 st January,

1998 till the date of its realization.

3. The brief facts of this case are that on 16 th November,

1997, deceased Chander Bhan Gupta was going on

M.B.Road on his two wheeler scooter No.DL-3S-K-9236 at a

normal speed on his right side on the road. When he

reached near Peepal Wala Chowk, all of a sudden a DTC

Bus bearing No.DPB-6099 driven by one Rajbir Singh

(Respondent No.1) came at a very fast speed and in a rash

and negligent manner from the side of Sangam Vihar and

knocked down the scooterist with a great force. Due to

forceful impact, the deceased fell down on the road and got

crushed under the DTC Bus. This accident was caused

entirely due to rash and negligent driving of the bus driver.

4. The appellant filed a claim petition under Section 166

and 140 of the Motor Vehicles Act, 1988 (in short as Act).

5. During the trial, learned counsel for the appellant on

6th April, 2004 had given statement before the Tribunal

that the petition be converted under Section 163-A of the

Act. That request was allowed and the petition was

converted under Section 163A of the Act.

6. Being dissatisfied with the award passed by the

Tribunal, the appellant has preferred the present appeal.

7. It is contended by learned counsel for the appellant

that the Tribunal has mechanically treated the petition

under Section 163A of the Act merely on the basis of the

oral request made by the counsel for the appellant whose

case was without any relation, title or interest or rights qua

the deceased.

7. Other contention is that the deceased as a very long

tenure of effecting working at the time of the accident and

the trial court has failed to assist proper dependency.

8. Moreover, the Tribunal has wrongly ignored the fact

that driving licence of deceased was filed by the appellant

and the same is on record of the trial court which goes on

to prove that deceased was a driver by profession.

9. Another contention raised by learned counsel for the

appellant is that the trial court did not consider the future

income as well as the future prospect of the deceased

which it ought to have considered.

10. On the other hand, it has been contended by learned

counsel for the respondent/DTC that the appellant was 45

years old at time of the accident and the deceased was

unmarried and the multiplier of 13 years applied by the

Tribunal, is also on the higher side.

11. Further, there is no documentary evidence placed on

record by the appellant to show that deceased was working

as a driver as his driving licence has not been proved nor

the income of the deceased has been established. Under

the circumstances, the amount awarded in this case by the

Tribunal is just and proper.

12. As per record though the present petition was filed

under Section 166 and 140 of the Act but on 6th April,

2004, counsel for the appellant himself has made a request

before the Tribunal for converting the petition under

Section 163 of the Act and that request was allowed and

the petition was treated under Section 163 of the Act.

13. Even when compensation is payable under Section

166 read with 168 of the Act, deviation from the structured

formula as provided in the Second Schedule of the Act is

not ordinarily permissible except in exceptional cases. [See

Arati Bezbaruah v. Dy. Director General, Geological Survey

of India, 2003 ACJ 680 (SC); United India Insurance Co.

Ltd. v. Patricia Jean Mahajan, 2002 ACJ 1441 (SC) and U.P.

State Road Trans. Corpn. v. Trilok Chandra, 1996 ACJ 831

(SC). In this context, reference be made to recent decision

of this Court in R.K.Malik & Ors. V. Kiram Pal & Ors.

2007 ACJ 2010.

14. Under the circumstances, there is no force in this

arguments advance by learned counsel for the appellant.

15. As far as the profession and income of deceased is

concerned, the appellant deceased has appeared as PW-1

before the tribunal and stated that deceased was 27 years

old and was unmarried at the time of accident. He was a

driver by profession and was privately employed and

keeping the salary of Rs.3000-3500/- pr month and out of

the said income he used to give her Rs.1500-1800 per

month.

16. As per finding of the trial court, no document has

been placed on record to establish that the deceased was

driver by profession or he was earning Rs.3000-3500/- per

month. Further it is stated that the appellant has not even

placed on record the driving licence of the deceased. In

the absence of any reliable evidence on record, the income

of deceased has been assessed on the basis of minimum

wages prevailing at that time.

17. With regard to the future prospect as contented by

learned counsel for the appellant, it has no where

impleaded about his future prospects.

18. Under the circumstances, I do not find any infirmity

or illegality in the order passed by the Tribunal.

19. The appeal is, therefore, dismissed.

20. No order as to costs.

21. Trial court record be sent back.

V. B. GUPTA, J.

July, 2008 Bisht