Ram Ratti & Ors. vs Om Parkash & Ors.
2009 Latest Caselaw 982 Del

36
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +    MAC.APP. 233/2004

                             Date of Decision: 25th March, 2009
%
      RAM RATTI & ORS.                        ..... Appellants
                    Through :       Mr. Rajiv Khosla, Adv.

                    versus

      OM PARKASH & ORS.                      ..... Respondents
                  Through :         Mr. D.K. Sharma, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may              Yes
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?             Yes

3.      Whether the judgment should be                     Yes
        reported in the Digest?

                        JUDGMENT (Oral)

1. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.1,65,600/- has

been awarded to appellant No.1 and 2. The appellants seek

enhancement of the award amount.

2. The road accident dated 9th October, 1993 resulted in

the death of Mr. Vinod Kumar who was going to his shop on

motorcycle bearing No.DL-1S-D-7376 when he was hit by

tanker bearing No.DHL-152.

3. The deceased was aged 25 years at the time of the

accident. The deceased was unmarried and was survived by

his mother aged 46 years and widowed sister along with her

four minor daughters who were residing with the deceased

and were dependent upon him.

4. The mother, widowed sister and four minor children of

the widowed sister of the deceased filed the claim petition

before the learned Tribunal.

5. The deceased was carrying on the business of retail

shop for selling of motor parts as well as building material

and was also the owner of a half body truck. In the petition it

was claimed that the income of the deceased was

Rs.30,000/- per month.

6. At the trial appellant No.1 appeared as PW - 1 and

proved the age of the deceased. PW - 1 deposed that her

husband had already expired prior to the death of her son.

She further deposed that the deceased was dealing in motor

parts as well as building material and was earning

Rs.25,000/- per month and was giving Rs.1,100 - 1,200/- per

day to her towards household expenses. She further

deposed that deceased left behind a fixed deposit of Rs.1

lakh with him on which she was getting interest. She also

deposed that her daughter, appellant No.2 was staying with

her along with her four minor daughters after the expiry of

her husband who were also dependent upon the deceased.

7. The appellant produced another witness, PW - 3 who is

the brother of the deceased. He deposed that the deceased

had kept amounts in the fixed deposit in the name of his

mother and his widowed sister and children of the widowed

sister. The copy of the fixed deposit receipts are Ex.PW - 3/1

to PW - 3/6. The witness further deposed that the deceased

had also purchased a jeep in the name of his mother. He

further deposed that the deceased had bank account and the

original pass book was exhibited as Ex.PW3/7. The copy of

the registration cover of the half body truck in the name of

the deceased was also placed on record.

8. The learned Tribunal did not find the evidence sufficient

to prove the income of the deceased and took Rs.1,800/- per

month to be the income of the deceased at the time of the

accident. The income of Rs.1,800/- was based on minimum

wages of Rs.1,369/- and the fixed deposits of the deceased.

The learned Tribunal also considered the future prospects by

taking the average of Rs.1,800 and its double, i.e. Rs.3,600/-.

The income was thus taken at Rs.2,700/- per month

(Rs.1,800 + Rs.3,600 x 2). Since the deceased was

unmarried, the learned Tribunal took the dependency of the

appellant at 40% which comes to Rs.1,080/-. The learned

Tribunal applied the multiplier of 12 and the loss of

dependency was computed at Rs.1,55,520/-. The learned

Tribunal awarded Rs.10,000/- towards loss of love and

affection and funeral expenses. The total compensation

computed was Rs.1,65,520/-.

9. The appellants have raised the following grounds to

challenge the award of learned Tribunal: -

(i) The income of the deceased should be taken at

Rs.25,000/- per month.

(ii) The personal expenses of the deceased should be

deducted @ 1/3rd instead of 60%.

(iii) The multiplier of 18 should be applied considering

the age of the deceased.

(iv) The compensation for loss of love and affection be

enhanced from Rs.10,000/- to Rs.50,000/-.

10. With respect to the income of the deceased, it has been

proved by evidence of PW - 1 and 3 that the deceased was

carrying on the business of building material. The deceased

was also the owner of the half body truck No.DHL - 152. The

challan book of the deceased was also placed on record with

respect to the business of building material carried on by him

at House No.75, Village & Post Office Haiderpur, Delhi - 110

042 which contains the counter folio of 100 challans from

serial Nos.1001 to 1100 containing the orders relating to the

building material received by the deceased. There is no

documentary evidence to prove the income of the deceased

except the oral statement of Pw - 1 saying that the deceased

was earning Rs.25,000/- per month. No account books of the

business have been placed on record. The challan book has

been placed on record but it does not prove the income of

the deceased. The pass book of the deceased has been

placed on record but there is no evidence to prove whether

the entries were relating to the income from the business.

PW - 3 has proved the fixed deposit receipts in the name of

appellant and other relatives but there is no evidence to

prove that the deceased had provided the source of money.

11. Considering the evidence on record that the deceased

was carrying on the business of building material and was

also the owner of half body truck, I do not find it appropriate

for the learned Tribunal to equate the deceased with a

labourer earning minimum wages. The income of the

deceased from the business of building material would be at

least Rs.2,000/- per month. The deceased also had a half

body truck and the income from the said source would also

be at least Rs.1,500/- per month. Considering the totality of

the evidence led by the appellant, I am of the view that the

income of the deceased can be safely assumed to be

Rs.3,500/- per month.

12. With respect to the future prospects of the deceased, I

agree with the principle applied by the learned Tribunal

following the judgment of the Apex Court. Applying the same

principle, the income of the deceased for the purposes of

computation of compensation is taken as Rs.5,250/- per

month [(Rs.3,500 + Rs.7,000)/2].

13. The learned Tribunal has deducted 60% of the income

of the deceased as personal expenses. The deduction of

60% of the income towards personal expenses of the

deceased is unwarranted as the mother and widow sister

with four minor daughters were dependent upon the

deceased. Considering the recent judgment of the Apex

Court in the case of Bangalore Metropolitan Transport

Corporation vs. Sarojamma, (2008) 5 SCC 142, the

personal expenses of the deceased are taken to be 1/3 rd.

The annual loss of dependency of the deceased on the above

basis is computed as Rs.42,000/- (Rs.5,250x 2/3 x 12).

14. With respect to the multiplier, taking the age of the

deceased at 25 years, the appellants claim the multiplier of

18 according to the Second Schedule. However, appellant

No.1, mother of the deceased was aged 46 years at time of

the accident and the appropriate multiplier is 13 according to

the age of the mother of the deceased as per Second

Schedule of the Motor Vehicles Act, 1988. The learned

Tribunal has applied the multiplier of 12. Considering the

recent pronouncements of the Hon'ble Apex Court where the

multiplier lower than the Second Schedule has been applied,

the multiplier of 12 is upheld.

15. The learned Tribunal has awarded Rs.10,000/- towards

loss of love and affection and funeral expenses. The

compensation under two heads has to be awarded

separately. The compensation for loss of love and affection

are non-pecuniary damages which are conventional in nature

and has to be just, fair and reasonable.

16. In the present case, the compensation of Rs.10,000/-

towards loss of love and affection to appellants is fair and

reasonable. The compensation for funeral expenses is

awarded as Rs.2,500/- considering that the accident took

place in the year 1993. The total compensation is

computed at Rs.5,16,500/- (Rs.42,000 x 12 + Rs.10,000 +

Rs.2,500).

17. The appeal is accordingly allowed. The compensation

is enhanced from Rs.1,65,600/- to Rs.5,16,500/-. The learned

Tribunal has awarded interest @ 9% per annum from the

date of filing of this petition, i.e. 22nd December, 1993 up to

realization minus period of 3 years. The interest @ 9 % per

annum on the original award amount of Rs.1,65,600/- is not

disturbed but on the enhanced amount, the rate of interest

shall be 7.5% from the date of filing of the petition till

realization minus period of three years.

18. Respondent No.3 is directed to deposit the enhanced

award amount with the learned Tribunal within 30 days. Out

of the enhanced amount, the share of appellant No.2 shall be

Rs.70,000/-, which may be released to her. The balance

amount along with interest is payable to appellant No.1 out

of which 30% of the balance enhanced amount along with

proportionate interest be released to appellant No.1 and 70%

of the balance enhanced amount along with proportionate

interest be kept in a fixed deposit for a period of 10 years on

which the periodical interest be paid to appellant No.1.

19. Copy of this order be given 'Dasti' to learned counsels

for both the parties under signatures of Court Master.

20. No costs.

J.R. MIDHA, J

MARCH 25, 2009 mk