Smt. Sarita Jain And Others vs Mohd. Zahid And Others
2011 Latest Caselaw 3679 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                FAO 49/1999

SMT. SARITA JAIN AND OTHERS         ..... Appellants
               Through: Mr.Nitinjya Chaudhary, Advocate.

            versus
MOHD. ZAHID AND OTHERS              ..... Respondents
             Through: Ms. Manjusha Wadhwa, Advocate
                      for the respondent No.3 - Insurance
                      Company.

%                         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?

                        JUDGMENT (ORAL)

: REVA KHETRAPAL, J.

1. This is an appeal under Section 173 of the Motor Vehicles Act,

1988 against the award dated 13.07.1998 passed by the Motor

Accident Claims Tribunal, New Delhi in Claim Petition No.515/1992

awarding a sum of ` 1,48,000/- (Rupees one lakh forty eight

thousand only) with interest thereon, for the untimely demise of Sh.

Parveen Kumar Jain in a motor vehicular accident, which took place

on 04.05.1992.

2. The appellants as legal representatives of the deceased had

filed a claim petition on 12.08.1992 under Sections 166 and 140 of

the Motor Vehicles Act, 1988 impleading the respondents 1 to 3 as

the driver, the owner and the insurer of the alleged offending tempo

bearing No. DL-IL-3592, which had hit the two wheeler scooter of

the deceased resulting in his sustaining fatal injuries. It was pleaded

by the appellants in the claim petition that the deceased was a

businessman and his monthly income was ` 5,000/- (Rupees five

thousand only) per month, that he left behind him a young widow,

two minor children and his parents, and that the son and daughter of

the deceased were studying in a public school.

3. The learned Tribunal after analysing the evidence, however,

noted that in the petition it was nowhere clarified as to what was the

nature of business being carried on by the deceased, except that it was

in the name and style of M/s R.K. Traders and was situated at Loni

Road, Shahdara. The learned Tribunal observed that given the fact

that the deceased was alleged to have a permanent place of business

and a firm functioning from the said place, the claimants should have

made an effort to strictly prove the income of the deceased. The

Tribuanl further observed that there was also nothing on record to

prove the occupation of any business premises by the deceased, the

nature of business had not been clarified and the books of accounts

had not seen the light of the day and, as such, it would not be safe to

accept the oral statement made by the wife of the deceased with

regard to his earnings. The learned Tribunal accordingly held that it

would be safer to go by the minimum wages payable around the

relevant time and accordingly assessed the earnings of the deceased to

be in the sum of ` 958/- (Rupees nine hundred fifty eight only) per

month and in accordance with the dicta laid down by the Supreme

Court in the case of Sarla Dixit Vs. Balwant Yadav, AIR 1996 SC

1274 took the average income of the deceased to be ` 1437/- (`

958/- + ` 1916/- = ` 2874/- divided by 2). Deducting one-third

(1/3rd) therefrom towards the personal expenses of the deceased, the

loss of dependency was reduced to ` 958/- per month, to which the

multiplier of 12 was applied. The total loss of dependency was, thus,

calculated to be ` 958/- x 12 x 12 = ` 1,37,952/- (Rupees one lakh

thirty seven thousand nine hundred and fifty two only). Further

adding non-pecuniary damages under the various heads, a total sum

of ` 1,48,000/- (Rupees one lakh forty eight thousands only) was

awarded with interest at the rate of 12% per annum from the date of

the filing of the petition till realization.

4. Aggrieved by the meagre amount of compensation awarded to

them, the appellants preferred the present appeal with an application

for permission to lead additional evidence with regard to the income

of the deceased, alongwith the original assessment order dated 31st

March, 1989 passed by the Sales Tax Authority pertaining to the

assessment year 1984-85, and a copy of the passport of the deceased.

In view of the fact that the said documents were adjudged to be

relevant and material for the determination of the issues involved in

this appeal, the said application for adducing additional evidence was

allowed by my learned predecessor by an order dated 4.3.2009.

5. Pursuant to the said order, an affidavit by way of evidence was

filed by Smt. Sarita Jain, the widow of the deceased, who tendered the

same in evidence as AW1/1 alongwith the Form of Order of

Assessment under Section 23 of Delhi Sales Tax Act, 1975 and the

Form of Order of Assessment under Section 9 of the Central Sales

Tax Act, 1956 (Exhibit AW1/2 and Exhibit AW1/3). The witness

was subjected to cross-examination by the learned counsel for the

respondent No.3, but her testimony emerged unshaken even after

extensive cross-examination and, as a matter of fact, she reiterated in

her said cross-examination that her husband was carrying on the

business of General Merchant (Kiryana Business) and Commission

Agent from Shop No. 1/4670-B, Balbir Nagar Extension, Loni Road,

Shahdara, Delhi-110032, which premises he had taken on rent for the

purpose of carrying on the aforesaid business. On a specific query

put to her by the counsel for the respondent no.3, she stated that she

was in possession of the rent-receipts of the said shop. She also

reiterated that she had two children who were studying in Class VI

and Class II respectively at the time of her husband's death in 'Little

Flower Senior Secondary School', Shahdara, Delhi and a sum of

` 1,500/- per month was being spent on their education. The witness

also confirmed that she knew that the firm M/s P.K. Traders was

registered with the Sales Tax Department, but stated that she did not

know if her husband was an income tax payee. She further stated that

a plot had been purchased by her husband in her name in the year

1984, which was in her possession alongwith the sale-deed thereof.

She categorically denied the suggestions put to her that her husband

was not earning ` 5000/- (Rupees five thousands only) per month

and that her children were not studying in an English medium school.

6. In the backdrop of the aforesaid testimony of the appellant

No.1, the following contentions were raised by Mr. Nitinjya

Chaudhary, the learned counsel for the appellants:-

(i) The learned Tribunal erred in adopting the

yardstick of minimum wages for assessing the loss

of dependency of the appellants and in rejecting

the oral testimony of the widow of the deceased.

The learned Tribunal ought to have assessed the

income of the deceased to be not less than `

5,000/- (Rupees five thousands only) per month,

and thereafter assessed his average annual income

after taking into account the future prospects of

increase in the income.

(ii) The learned Tribunal erred in deducting one-third

(1/3rd) of the income of the deceased towards his

personal expenses. Keeping in view the fact that

the deceased had five dependent family members,

a deduction of not more than one-fourth (1/4th) was

warranted towards the personal expenses and

maintenance of the deceased.

(iii) In view of the fact that even under the Second

Schedule of the Motor Vehicles Act, 1988, which

lays down the indicia for the appropriate multiplier

to be adopted for victims of different age-groups,

the appropriate multiplier for the age-group of

victims between 41 years to 45 years is the

multiplier of 15, the learned Tribunal erred in

applying the multiplier of 12 to the multiplicand

constituting the loss of dependency of the

appellants.

(iv) The learned Tribunal awarded a very meagre

amount towards the pecuniary and non-pecuniary

damages and no amount whatsoever had been

awarded towards the loss of love and affection of

the deceased.

8. Adverting first to the aspect of assessment of the income of the

deceased, I find that a bare glance at the assessment order dated 31st

March, 1989 (Exhibit AW1/2) shows that the total registered sales of

the deceased for the assessment year 1984-85 were in the sum of `

2,83,770 (Rupees two lakh eighty three thousand seven hundred and

seventy only) per annum or say ` 2,84,000/- (Rupees two lakh and

eighty four thousand only) per annum or ` 23,666/- per month.

Indisputably, there is nothing to suggest as to what was the profit

margin of the deceased and the assessment of the profit margin can at

best be ascertained by guess-work. However, keeping in view the

fact that the deceased was carrying on kiryana business, in my view,

his profit margin could not have been more than 10% after deducting

the expenses of the business including rent, electricity and other

charges. Thus, the income of the deceased for the purpose of loss of

dependency of the appellants at the time of his demise is taken to be

in the sum of ` 2,366/- (Rupees two thousand three hundred and sixty

six only) per month. With the passage of time, keeping in view the

nature of the business of the deceased, the deceased would have in all

probability increased his earnings by many times. However, keeping

in view the law laid down by the Supreme Court in the case of Smt.

Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.

(2009) 6 SCC 121, an addition of 30% is being made to the actual

earnings of the deceased, the deceased being 42 years of age on the

date of the accident, that is, in the age-group of 41 years to 50 years.

The average annual income of the deceased is, thus, assessed to be in

the sum of ` 36,912/- per annum (` 2,366/- + ` 710/- per month = `

3,076/- per month x 12).

9. Keeping in view the fact that the deceased had left behind him

five dependent family members including his widow, two school

going children and his parents, in my view, a deduction of one-fourth

(1/4th) instead of one-third (1/3rd) is warranted for the personal

expenses of the deceased. I accordingly accept the contention of the

learned counsel for the appellants in this regard. Thus calculated, the

annual loss of dependency of the appellants comes to ` 27,684/-

(Rupees twenty seven thousand six hundred and eighty four only).

10. It is settled law that the aforesaid multiplicand must be

augmented by an appropriate multiplier. In consonance with the

judgment of the Supreme Court rendered in the case of Smt. Sarla

Verma (supra), the appropriate multiplier for victims of the age-

group between 41 years to 45 years of age is the multiplier of 14 and

not the multiplier of 15 as set out in the Second Schedule to the Motor

Vehicles Act, 1988. Calculated in the aforesaid manner, the total

loss of dependency of the appellants comes to ` 27,684/- X 14 = `

3,87,576/- (Rupees three lakh eighty seven thousand five hundred

and seventy six only).

11. After adding to the aforesaid amount of pecuniary

compensation, the non-pecuniary damages in the sum of ` 5,000/-

(Rupees five thousand only) towards the funeral expenses of the

deceased, a sum of ` 10,000/- (Rupees ten thousand only) towards the

loss of the estate of the deceased, a sum of ` 10,000/- (Rupees ten

thousand only) towards the loss of consortium to the appellant No.1

and ` 10,000/- (Rupees ten thousand only) towards the loss of love

and affection of the deceased, the appellants are held entitled to

receive a sum of ` 4,22,576/- (Rupees four lakh twenty two thousand

five hundred and seventy six only) with interest at the rate of 7.5%

per annum. Resultantly, the award amount stands enhanced by the

sum of ` 2,74,576/- (Two lakhs seventy four thousand five hundred

and seventy six only).

12. The Insurance Company shall deposit the enhanced amount

within a period of 30 days from the date of passing of this order,

failing which it shall be liable to pay interest at the rate of 12% per

annum till the realization of the award amount. On the deposit being

made, the learned Tribunal shall pass orders with regard to the

apportionment and disbursement of the same to the appellants.

14. The appeal is allowed in the above terms.

15. Records of the learned Tribunal be sent back to the learned

Tribunal forthwith with a copy of this order.

REVA KHETRAPAL (JUDGE) AUGUST 02, 2011 sk