Pooran Chand Sharma vs Om Prakash Rana & Ors
2009 Latest Caselaw 1922 Del

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP. 64/2008

                                    Date of Decision: 6th May, 2009
%

      POORAN CHAND SHARMA                  ..... Appellant
                  Through : Mr. Jati Ram, Adv.

                      versus

      OM PRAKASH RANA & ORS             ..... Respondents
                   Through : Mr. Abhishek Kumar, Adv.
                             for R - 3.

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 accident dated 22nd November, 1994 resulted in

the death of Raj Kumar. The deceased was travelling in a

red line bus whose driver applied sudden brakes due to

which the deceased fell down from the bus and was run over

by the bus. The deceased was aged 19 years at the time of

the accident and was survived by his father who filed the

claim petition before the learned Tribunal.

2. The deceased was working as permanent employee

with D.M.A.R.K Credit & Holding Limited as Circle Officer

earning Rs.2,049/- apart from the other benefits. The salary

certificate of the deceased was proved as Ex.PW1/C. The

deceased was also earning commission and the commission

rates were proved as Ex.PW1/D. Prior to this employment,

the deceased was working with M/s. Bell Security Services as

Supervisor and was also registered with Employee Estate

Insurance Corporation with registration No.ESI No.3765429

and was earning Rs.3,000/- per month. Copy of the Form 6

i.e. Return of Contributions was also proved as Ex.PW1/E. His

identity card was also proved as Ex.PW1/F.

3. The deceased was an educated boy. He was holding a

yellow belt from Mushidokai International Affiliated to

Japanese Karate Federation, London which was proved as

Ex.PW1/G.

4. The learned Tribunal took the income of the deceased

as Rs.2,049/- and deducted 1/2 towards the personal

expenses of the deceased and applied the multiplier of 11 to

compute the compensation of Rs.1,35,300/-. Rs.5,000/- has

been awarded towards funeral expenses and Rs.15,000/-

towards loss of love and affection. The total compensation

awarded is Rs.1,55,300/-.

5. The appellant has challenged the impugned award on

the following grounds: -

(i) The income of the deceased was Rs.3,000/- per

month and the learned Tribunal erred in taking

the income of the deceased at Rs.2,049/- per

month.

(ii) The future prospects have not been taking into

consideration.

(iii) The compensation awarded towards loss of love

and affection be enhanced.

(iv) The appellant also challenged 25% negligence

attributed to the deceased.

6. I have perused the evidence on record. The appellants

have sufficiently proved the income of the deceased. The

income of the deceased is taken to be Rs.3,000/- per month.

The future prospects are taken to be 50% of the income

according to the recent judgment of the Hon'ble Supreme

Court in the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129 decided on 15th April,

2009. The income of the deceased for the purpose of

computation of compensation is taken to be Rs.4,500/- per

month (Rs.3,000 + Rs.1,500). 50% is deducted towards the

personal expenses of the deceased and the loss of

dependency of the appellant is computed to be Rs.2,250/-.

The multiplier of 11 is applied according to the age of the

appellant and the loss of dependency is computed to be

Rs.2,97,000/- (Rs.2,250 X 12 X 11). The compensation for

loss of love and affection is enhanced from Rs.15,000/- to

Rs.25,000/-. The total compensation awarded is computed at

Rs.3,22,000/- (Rs.2,97,000 + Rs.25,000).

7. The learned Tribunal has attributed 25% negligence to

the deceased and has reduced the award amount by 25%.

The reason for holding the deceased negligent is that the

deceased was standing on the gate of the bus. The finding

of the learned Tribunal in this regard is not correct. The

driver of the bus has a duty to take due care and caution.

The driver was well aware that the deceased was standing on

the gate and he had a duty to ensure that the passengers

are inside the bus when the bus is moving. Nothing has

come on record as to the duty discharged by the driver in

this regard. The driver was expected to drive the bus in such

a manner so as to ensure the safety of the passengers

travelling in the bus. I do not find any justification in

attributing 25% negligence on the part of the deceased. The

driver of the offending vehicle is, therefore, held to be rash

and negligent.

8. The appeal is accordingly allowed. The award amount

is enhanced from Rs.1,55,300/- to Rs.3,22,000/- along with

interest @7.5% per annum from the date of filing of the

petition till realization. The enhanced amount along with

interest thereon be deposited by respondent No.3 before the

learned Tribunal within 30 days.

9. The learned Tribunal is directed to release 50% of the

enhanced amount along with interest to the appellant and

remaining 50% of the award amount along with interest

thereon be kept in fixed deposit for a period of three years

on which no withdrawal, loan or advance be permitted

without permission of the learned Tribunal.

10. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signatures of Court Master.

J.R. MIDHA, J

MAY 06, 2009 mk