Vinod Kumar And Ors. vs Ranbir Singh & Ors.
2011 Latest Caselaw 3905 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO NO. 339/2002

VINOD KUMAR AND ORS.                                 ..... Appellants
                      Through:        Mr. Sandeep Phogat, Advocate.
               versus
RANBIR SINGH & ORS                                    ..... Respondents
                      Through:        Ms. Manjusha Wadhwa with
                                      Ms. Angana Goswami, Advocate
                                      for the respondent No.3/Insurance
                                      Company.

%                        Date of Decision :     August 11, 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?

                         O R D E R (ORAL)

: REVA KHETRAPAL, J.

1. The appellants in this appeal seek to assail the judgment and

award of the Motor Accident Claims Tribunal passed in Suit No.

288/1995 on 28.02.2002, whereunder an award in the sum of

` 1,53,600/- (including interim compensation) was passed in favour

of the appellants and against the respondents with interest thereon at

the rate of 9% per annum from the date of the filing of the petition till

realization, with a direction to the respondent No.3/Insurance

Company to pay the award amount.

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

14.01.1995 one Jagdish Chander died in a road accident, which took

place within the jurisdiction of Police Station, Najafgarh, resulting in

the registration of case FIR No. 19/1995 under Sections

279/337/304A IPC. A claim petition under the Motor Vehicles Act,

1988 was filed by his legal representatives being his widow, two

minor daughters and one son.

3. The Motor Accident Claims Tribunal after holding an enquiry

passed an award in favour of the legal representatives of the deceased

as aforementioned. Aggrieved therefrom, the present appeal has been

preferred by the appellants seeking enhancement of the award amount

on the ground that the award amount is a niggardly one. Mr. Sandeep

Phogat, the learned counsel for the appellants, has challenged the

award on a number of grounds.

4. The first ground urged by the learned counsel is that the

learned Tribunal wrongly assessed the income of the deceased to be

in the sum of ` 1,420/- per month, which was the minimum wage rate

applicable to an unskilled workman as on 01.08.1994 in Delhi. The

learned counsel contends that the deceased was an agriculturalist,

who also owned a milk dairy. He has pointed out that as per the

Khatauni proved on record as Exhibit PW1/1, the deceased along with

his brother Banwari was the co-owner of land admeasuring 99 bigas 7

biswas (approximately 12 ½ acres), meaning thereby that the

deceased owned more than 6 acres of land. Apart from this, as

testified by PW1 - Shri Vinod Kumar, the son of the deceased, the

deceased also owned 10 to 12 buffaloes and was selling milk from his

milk dairy. After the death of the deceased the said milk dairy had to

be closed down and the agricultural land had to be given for

ploughing on a crop-sharing basis.

5. The other contentions of the learned counsel are that the

learned Tribunal did not take into account the fact that the wages of

the deceased would have certainly increased with the passage of time;

and that the multiplier adopted by the Tribunal was on the lower side,

in as much as the Tribunal had applied the multiplier of 10 whereas

the appropriate multiplier in view of the fact that the age of the

deceased was 45 years, would be the multiplier of 16.

6. Lastly, it is contended by the learned counsel for the appellants

that no non-pecuniary damages whatsoever were awarded by the

learned Tribunal to the appellants.

7. Ms. Manjusha Wadhwa, the learned counsel for the respondent

No.3/Insurance Company, on the other hand, seeks to support the

award on the ground that the award is a just and fair one. She

contends that the learned Tribunal has rightly taken into account the

minimum wages for an un-skilled workman on the date of the

accident for the purpose of computing the loss of dependency of the

appellants. According to her, the admitted factual position is that the

aforesaid land belonging to the deceased has now been mutated in

favour of the appellants, and they have given the land for cultivation

on a crop-sharing basis and thus, the appellants are getting returns

from the said land to the extent of at least 50% of the income of the

deceased. As regards the future prospects of increase in the income

of the deceased, Ms. Wadhwa contends that there is no evidence on

record with regard to the future prospects of the deceased. On the

aspect of deduction, she submits that the deduction towards the

personal expenses and maintenance of the deceased should be not less

than 1/4th of the income of the deceased keeping in view the number

of dependant family members left behind by the deceased, whereas

the Tribunal has deducted 1/5th only of the income of the deceased for

his personal expenses. As regards the multiplier, it is submitted by

her that the multiplier of 16 is not the appropriate multiplier in the

present case. The appellants are entitled to seek application of only

that multiplier which is in accordance with the age of the deceased

and in consonance with the guidelines laid down 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.

8. Having heard the learned counsel for the parties and scrutinized

the records, it is deemed expedient to first note down certain factual

aspects of the case which are not in dispute. The first is that the

appellant No.1, the son of the deceased, has tendered in evidence

document Exhibit P-A, which shows that the deceased had passed his

Higher Secondary Examination in the year 1968 through the Central

Board of Secondary Education (C.B.S.E.) and that the date of birth of

the deceased was 11.05.1949, meaning thereby that the deceased was

aged 45 years and 6 months on the date of the accident. It also

deserves to be noted that there is on record document PW1/1, which

is a Khatauni in Form No.6, showing that the deceased alongwith his

brother was the owner of 99.7 bigas of land in the Najafgarh area.

The share of the deceased in the said land was thus to the extent of

50%, the remaining 50% being owned by his brother. It is not in

dispute that the said land now stands mutated in the names of the

appellants and has been given out for ploughing on a crop-sharing

basis. As regards the milk dairy owned by the deceased, the only

evidence on record to show that the deceased had 10 to 12 buffaloes

is the statement of PW1 - Shri Vinod Kumar, the son of the deceased

alone.

9. There is no manner of doubt that the assessment of

compensation in a case such as the present one is a difficult task in

view of the fact that there is no documentary evidence to support the

version of the appellants that the deceased was earning ` 6,000/- per

month. The learned Tribunal has however taken the income of the

deceased at par with the wages of an unskilled worker on the date of

the accident, which, in my view, is not appropriate keeping in view

the fact that the deceased was an agriculturist owning more than 6

acres of land and was also an educated person. I would, therefore,

prefer to go by the Higher Secondary School Certificate of the

deceased and assess his income on the basis thereof. The minimum

wage rate for a matriculate as notified by the Government of India on

the date of the accident was to the tune of ` 1,868/- per month. The

income of the deceased is accordingly assessed to be in the sum of `

1,868/- per month.

10. Judicial notice has time and again been taken by different

Benches of this Court of the fact that minimum wages get doubled

over a period of 10 years to counter the rise in price index and

inflation, and this fact cannot be brushed aside while computing the

loss of dependency of the legal representatives of the deceased in a

motor vehicular accident. The following are the decisions in which

the aforesaid view has been expressed by this Court:

(i) Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182;

(ii) National Insurance Co. Ltd. vs. Kailash Devi, II (2008)

ACC 770;

(iii) National Insurance Company Limited vs. Renu Devi,

III (2008) ACC 134;

      (iv)    UPSRTC vs. Munni Devi, IV (2009) ACC 879;

      (v)     Shanti Devi and Ors. vs. Ghasiya Khachhap and Ors.,

              ILR (2010) Delhi 412;

      (vi)    Jitender Kumar vs. Virender Singh, II (2010) ACC

              322;

(vii) New India Assurance Co. Ltd. vs. Sujata & Ors., MAC.

APP. No.19/2011 decided on January 21, 2011; and

(viii) The New India Assurance Co. Ltd. vs. Rajni Devi &

Ors., 2011 (179) DLT 744.

11. I see no reason to disagree with the aforesaid view nor any

cogent reason could be pointed out to me by the learned counsel for

the respondent No.3 to enable me to justify a departure from the

same. Accordingly, the income of the deceased at the time of his

demise must be added to the future anticipated income of the

deceased and the resultant sum must be divided by two to arrive at the

average monthly income of the deceased. Calculated thus, the

income of the deceased comes to ` 2802/- per month, that is, `

1,868/- plus ` 3,736/- divided by 2. Keeping in view the fact that

the deceased had four dependant family members, in my view, a

deduction of 1/4th from the income of the deceased would be justified

towards the personal expenses and maintenance of the deceased and

thus, the average monthly loss of dependency of the appellants comes

to ` 2101.50 per month, that is, ` 25,218/- per annum (Rupees

Twenty Five Thousand Two Hundred and Eighteen Only).

12. Indisputably, the deceased was 45 years and 6 months of age

on the date of the accident and thus, the appropriate multiplier to

augment the aforesaid multiplicand would be the multiplier of 14,

which is also the multiplier approved of and tabulated by the Hon'ble

Supreme Court in the case of Sarla Verma (supra) for the age group

of deceased persons between 41 years and 45 years of age. Applying

the multiplier of 14 to the aforesaid sum of ` 25,218/- , the total loss

of dependency of the appellants comes to ` 3,53,052/- (Rupess three

lakh fifty three thousands and fifty two only).

13. In addition to the aforesaid amount, the appellants are also

entitled to receive non-pecuniary damages and accordingly, non-

pecuniary damages under the heads of loss of love and affection, loss

of consortium, loss of estate and funeral expenses in the sum of `

10,000/- each are awarded. Thus, the total award amount works out

to ` 3,93,052/-(Rupess three lakh ninety three thousands and fifty two

only). .

14. The award amount accordingly stands enhanced by the sum of

` 2,39,452/-, which is rounded off to ` 2,39,500/-. The enhanced

amount shall be paid by the respondent No.3 to the appellants within

6 weeks from today alongwith interest at the rate of 9% per annum

from the date of the institution of the petition till the date of

realization by depositing the same in the Tribunal. The orders with

regard to the apportionment and disbursement shall be passed by the

Tribunal as deemed fit.

15. The appeal is allowed in the above terms.

16. Records of the learned Tribunal be sent back to the concerned

Tribunal.

REVA KHETRAPAL (JUDGE) August 11, 2011 ak