Anita Aggarwal And Ors. vs Lal Chand And Ors.
2011 Latest Caselaw 3662 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      MAC. APP. 10-14/2006


ANITA AGGARWAL AND ORS.                         ..... Appellants
                Through:                   Mr. Navneet Goyal, Advocate

                       versus

LAL CHAND AND ORS.                                  ..... Respondents
                 Through:                   Mr. Ram N. Sharma,
                                           Advocate for the respondent
                                           No.3
                                           Mr. K.L. Nandwani, Advocate
                                           for the respondent No.6

%                               Date of Decision :   August 02, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                                J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated

14.09.2005 passed by the Motor Accidents Claims Tribunal awarding

to the appellants compensation in the sum of ` 4,53,000/- payable by

respondents No.3 and 6 along with interest at the rate of 6% per

annum from the date of the filing of the petition till payment.

2. The facts relevant for the decision of the appeal are that on

25.05.1999, one Shiv Kumar Aggarwal was travelling by TATA

Sumo from Delhi towards Khatu Shamji. The said TATA Sumo was

hit by a jeep bearing No.RJ-14-C-4586 from the front side driven by

the respondent No.1 in a rash and negligent manner. At the same

time, a mini bus bearing No.RJ-14-P-6534 also hit the TATA Sumo

resulting in the death of several persons travelling in the vehicle,

including the said Shiv Kumar Aggarwal. The alleged offending jeep

was insured with the respondent No.3, M/s. Oriental Insurance

Company Limited while the offending mini bus was insured with the

respondent No.6, M/s. United India Insurance Company Limited. The

respondent No.2 was the owner of the jeep and the respondent No.5

was the owner of the offending mini bus, both of which hit the TATA

Sumo one after the other.

3. The Motor Accidents Claims Tribunal after conducting an

enquiry under the provisions of Section 166 of the Motor Vehicles

Act, 1988 held the respondent No.3 and the respondent No.6, the

insurers of the jeep and the mini bus respectively, equally liable to

pay the award amount. For the purpose of assessment of the loss of

dependency of the appellants, the learned Tribunal assessed the

income of the deceased to be in the sum of ` 2,350/- at the time of his

untimely demise on the basis of the minimum wage rate applicable to

an unskilled workman in May, 1999, that is, on the date of the

accident. The Tribunal then concluded that had the deceased not died

a premature death, there was bound to be an increase in his income.

Applying the law laid down by the Hon'ble Supreme Court in the

case of Sarla Dixit vs. Balwant Yadav, AIR 1996 SC 1274, the

learned Tribunal assessed the average income of the deceased by

adding his actual income at the time of his death and his future

income and dividing the sum total by two, that is, ` 2,350/- (actual

earnings) + ` 4,700/- (future earnings) ÷ 2 = ` 3,525/- per month.

From the said gross monthly income, one-third was deducted by the

learned Tribunal on account of the personal expenses of the deceased

and the balance was assessed to be the loss of dependency of his

family members, that is, ` 2,350/-. The Tribunal then went on to

state that the multiplier applicable to the age of the deceased, who

was 44 years of age on the date of his death, was the multiplier of 15

as per the II Schedule of the Motor Vehicles Act, 1988. Hence, the

total loss of dependency was ` 2,350/- x 12 x 15 = ` 4,23,000/-. To

the aforesaid pecuniary compensation, the Tribunal added a sum of `

30,000/- on account of funeral expenses, loss of love and affection

and consortium and, accordingly held the claimants to be entitled to a

total compensation of ` 4,53,000/-, including the amount of the

interim award.

4. Aggrieved by the aforesaid award of compensation, the present

appeal has been preferred by the appellants, who are the legal

representatives of the deceased, on the ground that the manner of

computation of compensation is wholly unjustified and unwarranted.

5. Mr. Navneet Goyal, the learned counsel for the appellants,

vehemently contended that the Tribunal ought not to have brushed

aside the statement made on oath by PW3 Anita Aggarwal, who

categorically stated that her husband owned a truck bearing No. DL-

1GA-9523, and was engaged in transport business and used to

transport building material, earning therefrom a sum of ` 10,000/- per

month. After the death of her husband, she stated that the said truck

had been transferred in her name, but as she could not manage the

business, the driver of the truck, to whom her husband was paying a

monthly salary of ` 4,000/-, left the job. Mr. Goyal pointed out that

the testimony of PW3 Anita Aggarwal had emerged unscathed after

extensive cross-examination by the counsel for the respondent No.6

and there was, therefore, no reason for the Tribunal to have

disbelieved the same. Mr. Goyal also contended that the deceased

was an educated person which was clear from the fact that PW3 Anita

Aggarwal had stated in the witness-box that her husband had passed

the Second year of graduation. Not even a suggestion was put to this

witness that her husband had never been enrolled for the graduation

course. Mr. Goyal contended that in any case, merely because the

deceased was not an income-tax payee was not sufficient justification

for the Tribunal to equate his earnings with those of an unskilled

workman.

6. Mr. Ram N. Sharma, the learned counsel for the respondent

No.3 and Mr. K.L. Nandwani, the learned counsel for the respondent

No.6, on the other hand, contended in one voice that in view of the

fact that there was a total dearth of documentary evidence on record

with regard to the earnings of the deceased and in view of the further

fact that it stood established on record that the deceased was not an

income-tax payee, no error was committed by the learned Tribunal in

assessing the income of the deceased on the basis of the minimum

wage rate applicable in Delhi at the time of the accident. Both

counsel sought to support the award and urged that no enhancement

was called for in the facts and circumstances of the case.

7. There is no manner of doubt that the appellants have not been

able to establish on record the actual earnings of the deceased.

Nevertheless, I find force in the contention of Mr. Goyal that the

earnings of the deceased, who was admittedly carrying on a transport

business, cannot be equated to those of an unskilled workman on the

date of the accident. I am fortified in coming to the aforesaid

conclusion from the fact that it stands established on the record from

the testimony of PW1 Mahesh Chand, an official from the Regional

Transport Authority, Rajpur Road, Delhi that the truck No.DL-1GA-

9523 was registered in the name of the deceased Shiv Kumar on

09.02.1996 and it remained registered in his name till the date of his

demise on 25.05.1999. Thereafter, on 25.08.1999 it was transferred

in the name of the appellant No.1, viz., PW3 Anita Aggarwal on

account of the death of the deceased. This fact lends support to the

statement of PW3 Anita Aggarwal made on oath before this Court

that her husband was in transport business and was transporting

building material for which he owned truck No.DL-1GA-9523.

8. As regards the quantum of the earnings of the deceased,

undoubtedly it is a difficult task to assess the same in the absence of

any documentary evidence on record. However, I am of the view that

since it stands established on record that the deceased was engaged in

transport business, the learned Tribunal ought not to have assessed

the earnings of the deceased at par with those of an unskilled

workman, more so as it is noted by the Tribunal that the deceased had

engaged a driver to drive his truck and he himself was not holding

even a driving licence to drive a commercial vehicle. Since the

deceased had engaged a driver to drive his truck and the minimum

wage rate applicable to such a driver would be that of a skilled

workman, it would be wholly unjustified to assess the earnings of the

deceased to be less than those of his driver. At the same time,

without any documentary evidence on record, it is difficult to arrive at

the conclusion that the deceased was earning ` 10,000/- per month.

Had it been so, he should have been an income-tax payee. As noticed

above, PW3 Anita Aggarwal, the wife of the deceased, in the course

of her cross-examination, in answer to a specific query put to her by

the learned counsel for the respondent No.6, stated that her husband

had passed B.A. Second Year. I see no reason to disbelieve her and

accordingly deem it safe to assess the income of the deceased on the

basis of the minimum wage rate applicable to a matriculate at the

relevant time. Thus, the monthly income of the deceased at the time

of the accident is assessed to be in the sum of ` 2,788/-, which may

be rounded off to ` 2,800/-. Adding 50% to the said amount, the

average monthly income of the deceased comes to ` 4,200/-, that is,

` 2,800/- per month (actual earning) plus ` 1,400/- per month (50%

increase) = ` 4,200/- (Rupees Four thousand and two hundred only).

9. The next contention of Mr. Navneet Goyal, the learned counsel

for the appellants, is that the learned Tribunal erred in deducting one-

third of the income of the deceased towards his personal expenses and

maintenance and that keeping in view the fact that the deceased had

five dependent family members, a deduction of not more than one-

fourth towards his personal expenses was warranted. I find substance

in this contention. The deceased had left behind him his widow, two

minor children and his parents and in such circumstances, to my

mind, he could not have been spending more than one-fourth of his

income on his own expenses. Thus, deducting one-fourth from the

income of the deceased, the annual loss of dependency of the

appellants works out to ` 3,150/- (three-fourth of ` 4,200/-) x 12 = `

37,800/- (Rupees thirty seven thousand and eight hundred only).

10. It was next contended on behalf of the appellants that the

aforesaid multiplicand was appropriately augmented by the learned

Tribunal with the multiplier of 15 for arriving at the net loss of

dependency of the appellants. Indisputably, the multiplier for the age

group of victims between 41 years and 45 years set out in the Second

Schedule to the Motor Vehicles Act, 1988 is the multiplier of 15.

However, the multiplier of 14 has been held to be the appropriate

multiplier where the age of the deceased is between 40 years and 45

years in the judgment rendered by the Hon'ble Supreme Court in the

case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation

and Anr. (2009) 6 SCC 121. In the said case, the Supreme Court has

enjoined upon all the Courts and Tribunals, in the interest of

ensuring uniformity in the dispensation of compensation claims, to

follow the multipliers tabulated by the Supreme Court in the said

case. Accordingly, the multiplier of 14 is adjudged to be the

appropriate multiplier in the present case. Thus calculated, the total

loss of dependency of the appellants comes to ` 37,800/- x 14 =

` 5,29,200/- (Five lakh twenty nine thousand and two hundred only).

After adding the amount awarded by the learned Tribunal towards

funeral expenses and non-pecuniary damages, the total amount of

compensation thus works out to ` 5,59,200/-, which may be rounded

off to ` 5,60,000/- (Rupees five lakhs and sixty thousands only).

11. The award amount is accordingly enhanced by ` 1,07,000/-

(One lakh and seven thousand only). The enhanced amount of

compensation shall be paid by the respondents No.3 and 6 in equal

proportion within 30 days from the date of this order with

proportionate interest at the rate of 7.5% per annum from the date of

the institution of the petition till the date of payment. The enhanced

amount shall enure to the benefit of the appellant No.1, the widow of

the deceased.

12. The appeal is allowed in the above terms.

13. Records of the learned Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) August 02, 2011 km