Sh.Bharat Gulluani & Ors. vs Sh.Aslam & Anr.
2008 Latest Caselaw 2008 Del

*      HIGH COURT OF DELHI : NEW DELHI

                  MAC App. No.470 of 2008

%            Judgment reserved on:20th October, 2008

             Judgment delivered on 14th November, 2008


1.Sh.Bharat Gulluani

2.Sh.Vikas

3.Sh.Gagan Gulluani

(All sons of Late sh.Naubat Ram,
R/o H-56, Karam Pura,
New Delhi-110015.                        ....Appellants

               Through: Mr.Rajeshwar Kumar Gupta, Adv.

                           Versus

1.Sh.Aslam
s/o Sh.Amanat Khan
492, „O‟ Block, Janta House,
Sunder Nagri, Delhi.
Driver/Owner of TSR No.DL 1RF 1874

2. United India Insurance Co.Ltd.
10, Walraj Mandir, 1st Floor,
Raj Block, Near Gayanand Cinema,
GT Road, Shahdra,
Delhi-110032.                     ...Respondents.

             Through: Mr.Neeraj Bhardwaj, Adv.

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



MAC App.No.470 of 2008                       Page 1 of 9
 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.

Present appeal has been filed under Section 173

of the Motor Vehicles Act, 1988 (for short as „Act‟)

challenging the order dated 19th May, 2008 passed by

Smt. Swarana Kanta Sharma, Judge, MACT Delhi (for

short as „Tribunal‟).

2. Brief facts of this case are that on 22nd December,

2004 deceased Naubat Ram was going to Punjab

National Bank, Kirti Nagar Branch from his residence

at Karampura on his bicycle. When he reached at

Mochi Market, Opposite Natraj Cinema, Kirti Nagar,

all of a sudden a TSR bearing registration No.DL 1R F

1874 driven by respondent No.1 in a rash and

negligent manner at a high speed had hit him. Due to

the impact, deceased had fallen down on the road and

had sustained grievous injuries and later on he died.

3. Respondent No.1 in his written statement took

the plea that he has been falsely implicated in this case

and there was no negligence on his part and the

vehicle was not being driven in a rash and negligent

manner.

4. Respondent No.2-Insurance Company has

admitted the factum of insurance.

5. Vide the impugned judgment, the Tribunal

awarded the compensation of Rs.1,46,000/- to the

claimants and also interest at the rate of 7.5% p.a.

from the date of filing of petition, till realization.

6. It has been contended by the learned counsel for

appellants that the Tribunal has taken the income of

the deceased on the basis of minimum wages of an

unskilled labourer despite PW2 Mr. Sandeep Sharma,

employer of the deceased, who was examined before

the Tribunal and proved the salary certificate issued by

him as Ex. PW2/B.

7. It may be pertinent to point out that initially the

petition before the Tribunal was filed by Smt. Shanti

Devi, widow of deceased as well as the present

appellants who are the sons of the deceased.

8. During the course of the proceedings, Smt.Shanti

Devi died and application under Order 22 Rule 2 CPC

for bringing her legal heirs on record was allowed vide

order dated 15th April, 2008 passed by the Tribunal.

9. The present appellants, who are the sons of the

deceased Naubat Ram, have filed the present appeal

seeking enhancement of the compensation.

10. 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.

11. 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.

12. In the present case, Shanti Devi, wife of the

deceased as PW1 in her cross examination stated that

her husband, the deceased was 62 years old at the

time of accident and was employed in a computer

company at Kirti Nagar and was getting monthly salary

of Rs.5,000/- plus Rs.1,000/- towards conveyance

charges from his employer, M/s. Inside Graphics.

13. PW-2 Sh. Sandeep Sharma, the employer of the

deceased, tendered his evidence by way of affidavit

and stated that he is partner of "Inside Graphics"

where the deceased was working. He proved the salary

certificate of deceased Ex.PW-1-1/1.

14. In his cross examination, he admitted that the

firm is a partnership firm and that the son of the

deceased is working in the firm since February, 2005.

The firm is paying income tax. However, they have no

proof to show that the deceased was working with

them. He also stated that the salary paid to the

employees is not shown as expenses in the income tax

return.

15. In the present case, no cogent evidence has come

on record, as regards the income of the deceased.

There is also nothing on the record to show about the

educational or technical qualification of the deceased.

16. In the absence of any proof, the Tribunal has

taken the income of the deceased on the basis of

minimum wages of unskilled worker as Rs.2,894.90

(rounded off as Rs.2,900/-) per month and after

deducting 1/3rd on account of personal expenses, had

adopted the multiplier of 5 as per Second schedule of

the Act since the age of deceased was 62 years.

17. The main dependants upon the earning of the

deceased were his wife, who had already died during

the course of the proceedings. Now, the appellants are

sons of deceased and are aged 31, 29 and 27 years. As

per Ex. RW-3/1, all the appellants are gainfully

employed and are earning Rs. 12,000/-, Rs. 7,500/- and

Rs. 3,500/- per month respectively. There is nothing

on record to show that any of the sons of the deceased

was financially dependent upon him.

18. In Bhagwani Devi v. Krishna Kumar Saini,

AIR 1985 P & H 347, where all the sons of the

deceased were adult and employed during his life time,

the Punjab and Haryana High Court held that;

"None of these sons has been shown to have been dependent upon the deceased. They were all adults and employed during the lifetime of the deceased. It is well settled that occasional gifts by parents to grown up children for any special purpose or otherwise does not denote dependency justifying compensation being awarded to such children on this account."

19. In A.P.S.R.T.C. represented by its General

Manager, Hyderabad v. B. Krishnaji Rao and

another, 1995 ACJ 983, the Andhra Pradesh High

Court has observed as under;

"As regards loss to the estate, the legal representatives are entitled to compensation in accordance with the shares, they are entitled to under their Personal Law. But, so far as the loss of dependency is concerned, they will be entitled to compensation only if they are dependents and not otherwise. (Md. Abdul Wahab v. Setwin 1988 Ace CJ 743 (Andh Pra)."

20. Keeping in view all the facts and circumstances

brought on record, I am of the view that the

compensation as awarded by the learned tribunal is

just and fair and no ground is made out for

enhancement of compensation as awarded by the

Tribunal.

21. Accordingly, no infirmity can be found with the

impugned Judgment of the Tribunal.

22. The present appeal is, therefore, dismissed.

23. No order as to costs.

14th November, 2008               V.B.GUPTA, J.
Bisht/rs