Delhi High Court

Smt. Meghawati vs Raja Ram Yadav & Ors. on 28 July, 2008

Author: V.B.Gupta

*            HIGH COURT OF DELHI : NEW DELHI



                      MAC App. No.697 of 2006

%                     Judgment reserved on:16th July, 2008

                      Judgment delivered on: 28th July, 2008


Smt. Meghawati
W/o. Late Sh. Member Singh
R/o. Opposite Shiv Mandir,
Gali Shani Bazar Wali,
Village & Post Johri Pur,
Delhi                                          ... Appellant.

                            Through: Mr. Bhopal Singh, Adv.

                      Vs.

1. Raja Ram Yadav
   S/o. Sh. Ram Bali Yadav
   R/o. 14-B/46, Dev Nagar,
   Karol Bagh, Delhi

2. Harpreet Walia
   S/o. Sh. Suderson Singh
   R/o 14-B/46, Dev Nagar,
   Karo, Bagh, Delhi

3. National Insurance Company
   Division Office No.22,
   5/67, Pal Mohan House,
   Padam Singh Road,
   Karol Bagh, Delhi.




MAC App.No.697/2006                                  Page 1 of 14
 4. Ajay Kaushik,
   S/o. Late Sh. Member Singh

5. Pritam Kaushik,
   S/o. Late Sh. Member singh

   Both R/o. Opposite Shiv Mandir,
   Gali Shani Bazar Wali,
   Village & Post Johri Pur,
   Delhi

6. Mrs. Sangeeta Rani Sharma
   W/o. Sh. Dinesh Kumar Sharma,
   D/o. Late Sh. Member Singh
   R/o. A-33 (65) Gali No.7,
   Phase-10, Shiv Vihar, Delhi   ... Respondents

                      Through: Ms. Nanita Sharma, Adv.
                      for respondents No.3.

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
in the Digest?                                       Yes

V.B. GUPTA, J.

The present appeal under Section 173 of the

Motor Vehicle Act, 1988 (for short as „Act‟) has been

filed by the appellant seeking enhancement of the

compensation amount.

2. By the impugned judgment dated 18th May, 2006,

passed by Sh. A.S. Yadav, Judge MACT, New Delhi, an

award in the sum of Rs.1,32,200/- along with 6%

interest from the date of filing of the petition till

realization was passed in favour of the appellant.

3. Being dissatisfied with the award, the appellant

has filed the present appeal.

4. The brief facts of this case are that on 1st August,

2002 at about 10.00 p.m., the deceased Member Singh

was coming on foot from VSNL office at NIC Building,

Parliament Street, New Delhi to the nearest Bus Stop

for taking the bus. While he was near Shahanshah

Restaurant, W.C. Road, he was hit by a Water Tanker

bearing No.DL 1G-0804 which was being driven by

respondent No.1, Raja Ram Yadav in a rash and

negligent manner. The deceased succumbed to the

injuries on the same day. Respondent No.2, Harpreet

Walia, is the owner of the tanker and offending vehicle

was insured with respondent No.3/Insurance Company.

5. The deceased was aged 54 years at the time of

the accident and was getting a monthly pension of

Rs.1,275/-. It has been further stated in the petition

that apart from the pension, deceased was already

getting Rs.4,000/- p.m. while working as a Supervisor

with M/s. Megh Engineering Works of which his son is

the proprietor.

6. It has been contended by learned counsel for the

appellant that Sh.Ajay Kaushik, son of the deceased,

who has appeared as PW 2, has categorically proved

on record that his father was employed in his firm and

he used to pay salary of Rs.4,000/- p.m. PW 1 Smt.

Meghawati, the appellant has also supported the

statement of PW2. Under these circumstances, the

Tribunal erred in assessing the net income of the

deceased as Rs.1275/-.

7. It is also contended that the deceased was able

bodied man at the time of the accident and was

working and even assuming that no documentary

evidence has been placed on record with regard to the

salary of the deceased which he was getting from his

son, since he being an able bodied person, he could

have easily earned minimum wages prescribed under

the law. The last drawn salary of the deceased in the

month of January, 2001 was about more than

Rs.8,000/- and the Tribunal has also not taken this fact

into consideration.

8. On the other hand, it has been contended by

learned counsel for the Insurance Company that there

is no ground for enhancement since, there is no

evidence on record that the deceased was getting a

salary of Rs.4,000/- by working in his son‟s firm, as no

account books or income tax returns of his son‟s firm

has been placed or proved on record. The Tribunal has

rightly assessed the income of the deceased as

Rs.1275/- per month which he was getting as pension

and besides this, there is no other income of the

deceased.

9. The Apex Court in plethora of cases has held that

while assessing the income of the deceased in motor

accident cases, the tribunals should bear in mind that

the same should be assessed on the basis of the cogent

and the reliable evidence produced and duly proved on

record.

10. In this regard the thumb rule is that where there

is no cogent evidence on record to prove the monthly

income at the time of accident, then the minimum

wages notified under the Minimum Wages Act

prevalent at the time of accident can be taken into

consideration.

11. It is true that appellant has not placed or proved

on record any documentary evidence to prove this fact

that deceased was getting a monthly salary of

Rs.4,000/- p.m. while working in the firm of his son.

Nevertheless, the fact remains that deceased was aged

about 54 years at the time of the accident and he was

able bodied person and as such he could have earned

at least minimum wages as prescribed under the law.

12. The deceased was working as a head peon with

the Telecom (DOT) since 10.07.73 and took premature

retirement with all pensionary benefits on 01.01.90.

The deceased again rejoined the service with the VSNL

as an Attendant HR (Grade NE-3) till 09.02.01, when

he was removed from his service as a measure of

disciplinary proceedings.

13. Thus, in the facts of the case, it can be safely

taken into consideration the minimum wages as

applicable for an unskilled worker.

14. The minimum wages as on the relevant date of

accident i.e. 01.08.02 for an unskilled worker were Rs.

2679.70/- say Rs.2680/-.

15. As per the Second Schedule of the Act, the

appropriate multiplier of 11 has been applied in the

present case.

16. Now, the question which arises as to whether

payment of benefit such as pension is required to be

correspondingly reduced from the amount of total

compensation payable or not?

17. In Mrs.Helen C.Rebello and others v.

Maharashtra State Road Transport Corpn. and

another, AIR 1998 SC 3191, about pensionary

benefits, the Apex Court in para 16 referred to the case

of the Grand Trunk Railway of Canada v. Jenning,

(1888) 13 AC 800 and held as under:-

"At the Common Law, pecuniary benefits from insurance policies, whatever the source, and pension schemes whether

contributory or non-contributory, were deducted. The various English Courts' decisions reveal the unsettled state of adjudication regarding the deductions from the compensation payable under the Fatal Accidents Act, 1846. Various divergent opinions were expressed, some favourable to the claimant to exclude any sum payable on life insurance or pensions from deduction out of the compensation payable to the claimant and other not to deduct till, as aforesaid, the matter was set at rest by various legislations culminating into the Fatal Accidents Act, 1959. Till before this, within the limitation of the restrictive language of the Act and in the absence of any motivating and guiding words under the statute the general principles under the common law was applied to ascertain the pecuniary loss and gain. Thus, the 'pecuniary advantage' from whatever source comes to the claimant by reason of the death, was interpreted giving its widest meaning. This amplitude of large sphere has been the cause of concern of the Courts, Legislative and the Jurists and reference to the insurance, pension, gratuity etc. whether it is a pecuniary gain deductible, if it is, whether one‟s conscience, equity and fairness are eroded, specially if it is applied with reference to the provisions of Motor Vehicles Act? To salvage from this onslaught, some decisions declined to interpret for deduction and some other, even after holding deductible, expressed

their conscience in favour of the sufferer. This we find both in the English decisions and the Indian decisions."

The Apex Court further in para 36 has pointed out about the family pension as under;

"Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co-relation between the two."

18. This Court in Delhi Transport Corporation v.

Meena Chaturvedi and others, 2006 ACJ 406, held

that deductions on account of life insurance, provident

fund, pension, etc. are not admissible in view of the

decision of the Apex Court in Helen C.Rebello

(supra).

19. In case of N.Sivammal and others v. The

Managing Director, Pandian Roadways Corpn.

and another, AIR 1985 106, the Apex Court pointed

out that the reduction of monetary benefit of pension

from the amount of compensation is without

justification.

20. In Savitri Devi & Ors. v. Pala Ram & Ors., II

(2000) ACC 152 (DB), the Punjab and Haryana High

Court has taken the view that the pension/family

pension payable to the widow could not be taken into

consideration for reducing the dependency of the

claimants.

21. In view of the aforesaid principles laid down by

the various Courts, the question is no more res integra

and the Tribunal exercising jurisdiction under the

Motor Vehicles Act is required to consider the payment

of damages/compensation to the person concerned on

the basis of income and the loss that others would

suffer irrespective of benefits, such as, insurance,

provident fund, pension, etc.

22. In New India assurance Co. Ltd. V. Charlie

and another, AIR 2005 Supreme Court 2157, the

Apex Court has observed as under;

"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula by universal application. It would depend upon circumstances of each case."

23. In the instant case, as far as the numbers of

dependents on the deceased are concerned, there is no

dispute that he had only one dependent i.e. his widow.

There is no other legal heirs of the deceased. Thus,

keeping in view of this fact, one half, is deducted of the

annual income, towards personal expenses.

24. Applying all these principles, taking the monthly

income of deceased at Rs.2,680/- (per month) x

12=Rs.32,160/ per annum and the monetary benefit of

pension as Rs.1,275/- x 12, i.e., Rs.15,300/- per annum,

the total of both, comes to Rs.47,460/- per annum.

25. Thus, after deducting one half, amount for