Meenu & Ors vs Harkesh & Ors
2009 Latest Caselaw 4796 Del

49
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +       MAC.APP.No.86/2008

%                               Date of decision: 24th November, 2009


      MEENU & ORS                             ..... Appellants
                          Through : Ms. Manjusha Wadhwa, Adv.

                     versus

      HARKESH & ORS                     ..... Respondents
                   Through : Mr. O.P. Wadhwa and
                             Mr. Amrik Singh, Advs. for R-2.

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 appellant has challenged the award of the learned

Tribunal whereby the compensation of Rs.5,80,000/- has been

awarded to the appellants. The appellants seek enhancement of

the award amount.

2. The accident dated 12th February, 2003 resulted in the

death of Prabhu Singh. The deceased was survived by his widow

and two minor children who filed the claim petition before the

learned Tribunal.

3. The deceased was aged 37 years at the time of the accident

and was working as a Supervisor with M/s Sound Products (India),

Delhi since 1992. The income of the deceased was claimed by

the appellants to be Rs.8,000/- per month. The learned Tribunal

held the evidence of occupation and income of the deceased to

be insufficient and, therefore, minimum wages of Rs.2,783/- per

month were taken into consideration to compute the loss of

dependency at Rs.5,35,000/-. Rs.40,000/- has been awarded

towards loss of love and affection and consortium and Rs.5,000/-

towards funeral expenses. The total compensation awarded is

Rs.5,80,000/-.

4. The only ground urged by learned counsel for the appellants

at the time of hearing of this appeal is that the income of the

deceased was Rs.8,000/- per month and the learned Tribunal

erred in not taking the income of the deceased to be Rs.8,000/-

per month and the future prospects thereon.

5. Appellant No.1 appeared before the learned Tribunal as PW-

1 and deposed that her husband was working as Production

Manager/Supervisor since 1992 with M/s Sound Products (India)

which is a proprietorship concern of Baldev Singh at a salary of

Rs.8,000/- per month.

6. Baldev Singh, the proprietor of M/s Sound Products (India)

appeared before the learned Tribunal as PW-2 and deposed that

the deceased was under his employment since 1992. PW-2

deposed that the service of the deceased was confirmed vide

letter - Ex.PW2/B. Ex.PW2/B records that the job of the deceased

was of collecting the job work and to execute the same. The

deceased joined the job on 2nd February, 1992 at a monthly

salary of Rs.1,500/- per month. The salary was agreed to be

increased at the rate of Rs.500/- per year. PW-2 further deposed

that the deceased was working as a Supervisor and he used to

procure the job works and execute the same and at the time of

the death, the deceased was getting a salary of Rs.8,000/- per

month. PW-2 deposed that the deceased was having good

experience of general engineering work. The two vouchers

signed by the deceased while taking the payment from PW-2

were exhibited as Ex.PW2/C and Ex.PW2/D. Ex.PW2/C is the

receipt dated 6th September, 1997 in the handwriting of the

deceased stating that he has received Rs.14,000/- towards

arrears of salary and the salary has been increased to Rs.4,000/-

per month. Ex.PW2/D is the receipt dated 9 th September, 2001 in

the handwriting of the deceased stating that the deceased has

received the arrears of salary of Rs.11,000/- and there was no old

outstanding and henceforth, the salary of the deceased would be

Rs.7,000/- per month. PW-2 was cross-examined at length by

learned counsel for respondent No.2. In cross-examination, it

was suggested to PW-2 by counsel for respondent No.2 that the

salary of the deceased in September, 2001 was Rs.5,400/- which

PW-2 admitted to be correct. PW-2 admitted that the payment of

Rs.11,000/- vide Ex.PW2/D pertains to the salary of two months

and the deceased left his employment. However, PW-2 clarified

that the deceased left his employment on one or two occasions

but was brought back by PW-2 on enhanced salary. On Court

question, PW-2 further clarified that the deceased continued the

employment in September, 2001. It is pertinent to mention that

respondent No.2 did not cross-examine PW-2 with respect to the

appointment letter - Ex.PW2/B and the receipt - Ex.PW2/C.

7. In cross-examination, PW-2 was asked to produce the

attendance registers which were produced and exhibited as

Ex.PW2/R1 and Ex.PW2/R2. The learned Tribunal held that the

attendance registers - Ex.PW2/R1 and Ex.PW2/R2 appear to be

fabricated as they were apparently new and, therefore, no

reliance can be placed on the same. The learned Tribunal further

held that FIR was registered by Narendra, the brother of the

deceased who stated in the FIR that he was running a Transport

Office along with the deceased in the name of Jaipur Delhi

Carrier. The learned Tribunal held that there was contradiction

between the statement of Narendra who registered the FIR and

PW-2 and the deceased was carrying on the business along with

Narendra and no evidence of the income of the business has

been placed on record and, therefore, the income of the

deceased be taken as per minimum wages of Rs.2,783/- per

month.

8. Upon reappreciation of the entire evidence on record, this

Court is of the view that the findings of the learned Tribunal with

respect to the occupation and income of the deceased are

misconceived and are, therefore, set aside.

9. The learned Tribunal was exercising the jurisdiction under

Section 168 of the Motor Vehicles Act which provides that the

learned Tribunal shall conduct an inquiry. Section 168 of the

Motor Vehicles Act nowhere provides that there shall be a civil

trial. Section 168 of the Motor Vehicles Act provides that the

inquiry shall be summary in entire and the learned Tribunal shall

formulate such procedure for conducting the inquiry as it thinks

fit.

10. It is held that the occupation and income of the deceased

has been proved by sufficient evidence. It has been proved by

PW-1 that the deceased was working as Supervisor with M/s

Sound Products (India) since 1992 and by PW-2, the employer of

the deceased, that the deceased was under his employment

since 1992. The appointment letter of deceased was duly proved

as Ex.PW2/B which provides that the deceased would be paid a

salary of Rs.1,500/- per month with annual increment of Rs.500/-

and the deceased would be responsible for collection and

execution of the job work. As per Ex.PW2/C, the salary of the

deceased in September, 1997 has been proved as Rs.4,000/- per

month. As per Ex.PW2/D, the salary of the deceased in

September, 2001 has been proved as Rs.7,000/- per month. As

per attendance register - Ex.PW2/R1, the salary of the deceased

in September, 2001 was Rs.5,400/- per month and as per

attendance register - Ex.PW2/R2, the salary of the deceased at

the time of the accident was RS.8,000/- per month. There is no

challenge to the appointment letter - Ex.PW2/B and the receipt -

Ex.PW2/C. Ex.PW2/C and Ex.PW2/D are in handwriting of the

deceased himself. Ex.PW2/B, Ex.PW2/C and Ex.PW2/D are

original documents and there is no doubt about their genuinty.

The attendance registers - Ex.PW2/R1 and Ex.PW2/R2 are new

registers and do not appear to be reliable. The occupation and

income of the deceased is, therefore, considered on the basis of

the statement of PW1 and PW2, Ex.PW2/B, Ex.PW2/C and

Ex.PW2/D from which it is clear that the deceased was working as

a Supervisor at a salary of Rs.7,000/- per month in September,

2001. There is a contradictory statement of Narendra in FIR but

Narendra has not appeared in the witness box before the learned

Tribunal and, therefore, the statement of Narendra is not an

evidence.

11. The income of the deceased at the time of the accident is

taken to be Rs.7,000/- per month. The deceased was aged 37

years at the time of the accident and according to the judgment

of the Hon'ble Supreme Court in the case of Sarla Verma Vs.

Delhi Transport Corporation, 2009 (6) Scale 129, 50% is

added towards future prospects and the income of the deceased

after adding the future prospects is taken to be Rs.10,500/-

(Rs.7,000 + 50%). 1/3rd is deducted towards personal expenses

of the deceased and the multiplier of 16 is applied to compute

the loss of dependency at Rs.13,44,000/- (Rs.10,500 x 12 x 2/3 x

16). The learned Tribunal has awarded Rs.40,000/- towards loss

of love and affection and consortium and Rs.5,000/- towards

funeral expenses which are upheld. The appellants are entitled

to total compensation of Rs.13,89,000/-.

12. The learned counsel for respondent No.2 submits that the

amount awarded by this Court is more than the claim made by

the appellants. It is well settled by the judgment of this Court in

the case of Virender Singh vs. Anand Prakash, 2008 ACJ

2519 that just compensation has to be awarded to the appellants

arising out of the accident and the amount awarded can be more

than the amount claimed.

13. The appeal is allowed and the award amount is enhanced

from Rs.5,80,000/- to Rs.13,89,000/- along with interest @7.5%

from the date of filing of the petition till realization.

14. The enhanced award amount along with interest be

deposited by respondents No.1 and 2 with the learned Tribunal

within 30 days. The share of the appellants in the award amount

shall be in the same proportion as per the award of the learned

Tribunal. The shares of the appellants No.2 and 3 shall be kept in

fixed deposit till they attain majority whereas with respect to the

share of appellant No.1, the learned Tribunal shall release 20%

award to her and the remaining 80% be kept in fixed deposit for

a period of five years.

15. Copy of this order be given 'Dasti' to learned counsel for the

parties under the signature of Court Master.

J.R. MIDHA, J

NOVEMBER 24, 2009 aj