Prabha Gupta & Ors vs Suresh & Ors
2011 Latest Caselaw 676 Del

                                  UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  FAO 104/1999 & CM 3822/2010


%                            Date of Decision : February 04, 2011


      PRABHA GUPTA & ORS                       ..... Appellants
                    Through:           Mr. V.P. Chaudhry, Sr. Advocate
                                       with Mr. Nitinjya Chaudhry and
                                       Ms. Sushma, Advocates

                   versus


      SURESH & ORS                         ..... Respondents
                            Through:   Respondent No.1 is ex parte
                                       Mr. A.K. Soni, Advocate for the
                                       respondent No.2

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.

CM No.3822/2010

This is an application under Order V Rule 20 CPC for substituted

service of the respondent No.1 by way of publication. Since the

respondent No.1 already stands served by way of publication, the present

application has become infructuous.

Dismissed as infructuous.

FAO 104/1999

By way of this appeal under Section 173 of the Motor Vehicles

Act, the appellants seek to assail the award dated 06.10.1988 passed

in Claim Petition No.651/1994, awarding a sum of ` 3,60,000/- with

interest @ 12% p.a. from the date of the petition till the date of the

award in favour of the appellants and against the respondents on the

ground that the compensation granted to the appellants was not

computed by the Tribunal in accordance with law.

2. The brief facts leading to the filing of the appeal are that an

unfortunate accident took place on July 14, 1994 near Pusa Chambry,

New Delhi in which Mr.S.P.Gupta, aged 53 years, lost his life and his

wife, Mrs.Prabha Gupta sustained injuries as a result of the three

wheeler scooter in which they were travelling turning turtle. A claim

petition was filed by Mrs.Prabha Gupta and the other legal

representatives of the deceased S.P.Gupta, claiming compensation for

his untimely death. In a separate petition filed by Prabha Gupta, she

also claimed compensation for the injuries sustained by her. Both the

claim petitions were ordered to be claimed and tried together. On the

evidence adduced by the appellants/claimants, the learned Tribunal

held that, the deceased Mr.S.P.Gupta had received fatal injuries and

Prabha Gupta had received injuries on account of the rash and

negligent driving of the TSR by its driver. The Tribunal then

proceeded to compute the compensation payable to the legal

representatives of the deceased S.P.Gupta, which is the subject matter

of appeal in the present case.

3. It was held by the Tribunal that the deceased S.P.Gupta was 53

years of age on the date of the accident, his date of birth being 27 th

March, 1941, as per his educational certificates proved on record by

PW4 Shivang Satya, son of the deceased. The Tribunal then noted

that it was alleged in the petition that the deceased was working as a

Teacher in S.P.Higher Secondary School in Jammu and his monthly

income was ` 12 ,104/-, in that he was drawing a salary of ` 5,104/-

per month and was earning a sum of ` 7,000/- from private coaching.

It was, however, claimed that the deceased was not assessed to

income tax. The Tribunal further noted that PW1 Prabha Gupta in her

testimony stated that the deceased was getting a salary of ` 5,104/-

per month from the school where he was employed, as per his salary

certificate, Exhibit PW1/1. She also claimed that in his spare time in

the evenings, the deceased used to coach the students in groups and

was earning a sum of ` 7,000/- per month from private coaching. In

cross-examination, however, she candidly admitted that her husband

had not maintained any accounts in respect of his income from private

tuitions, though she categorically denied that her husband had not

been imparting private coaching and had no extra income therefrom.

The learned Tribunal held that the appellants had failed to

produce any evidence to substantiate the statement of PW1 that the

deceased was earning a sum of ` 7,000 from private coaching. It

observed that if the statement of PW1 is accepted, the income of the

deceased in the year 1994 would have been around ` 12,000/- per

month, which was liable to be taxed. The appellants had failed to file

any income tax return in respect of the deceased and rather, had stated

in the petition that the deceased was not assessed to income tax. The

appellants had also failed to produce any of the students, in the

witness box, who were taking tuitions from the deceased, or any

document or record which might prove that the deceased was having

extra income from private coaching. Thus the Tribunal assessed the

income of the deceased to be in the sum of ` 5,104/- per month as set

out in his salary certificate. Applying the dicta laid down by the

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

III AD 13, the Tribunal then worked out the average monthly income

of the deceased, had the deceased survived the accident, to be in the

sum of ` 7,500/- per month, i.e., ` 5,104 + ` 10,000 divided by 2= `

7,552. On the assumption that the deceased was spending one third

of his total income on his own upkeep, the loss on account of monthly

dependency to the appellants was computed by the Tribunal to be in

the sum of ` 5,000/- per month or ` 60,000/- per annum. To

augment this multiplicand, the Tribunal applied the multiplier of 6,

and held that the compensation payable to the appellants came to `

3,60,000/- including the amount of ` 25,000/- already received by

the appellants as interim compensation. In addition, a sum of `

15,000/- with interest was awarded to Mrs.Prabha Gupta for injuries

sustained by her, which amount however is not sought to be assailed

in the present appeal.

4. Mr.V.P.Chaudhry, the learned Senior Counsel for the

appellants has drawn my attention to the claim petition wherein, inter-

alia, the following assertions have been made by the claimants:

(i) Shri S.P.Gupta, the deceased, was a youngman of 53 yeas of age. He was highly qualified man. He had to his credit B.Sc. Degree, Master of Arts and Master of Education Degrees. After receiving his education, he had

devoted himself to teaching line. He was Chairman of the Managing Committee of S.P.Academy which was running five schools within Jammu and Katwa Districts. Besides, being the Chairman of the Managing Committee of S.P.Academy, he was the Principal of S.P.Higher Secondary School, Exchange Road, Jammu. As Principal of the said school, Shri Gupta was drawing a salary of Rs.5,104.00 per month. In the spare time in the evening, he used to coach students in groups. He was earning bare minimum income of Rs.7000.00 from private coaching.

(ii) Shri S.P.Gupta (the deceased) possessed sound health and robust physique. He was a man of simple habits. He was renowed personality in the field of education. He was caring the most for his family and was providing best possible education to his children. The eldest daughter, namely Arti Gupta was undergoing medical studies at ALTASKY Government Medical College, BANNAUL SIBERIA, Russia. She entered third year after completion of second year studies. Second daughter named Anjali Gupta is undergoing dental course at SJM Dental College, Chitra Durg, Karnataka. Shri Gupta was spending Rs.1 lakh per annum for education of Arti and Rs.60,000.00 per annum for the education of Anjali Gupta. Master Shivang Satya Gupta was studying in 12th standard.

5. On the basis of the aforesaid, Mr.Chaudhry contended that

keeping in view the fact that the deceased was a highly qualified

academic, apart from being a father who was imparting the best

possible education to his three children, the learned Tribunal ought

not to have disbelieved the statement of PW1 Prabha Gupta that the

deceased was earning a sum of ` 12,000/- per month.

6. Apart from the above, three other contentions were raised by

Mr.Chaudhry, the learned Senior Counsel for the appellants, as

follows:-

(i) Keeping in view the fact that the deceased was survived by four

legal representatives, the learned Tribunal should have deducted one-

fourth of the income of the deceased towards his personal expenses

instead of one third.

(ii) The Tribunal erred in applying the multiplier of 6 to the total loss

of dependency per annum assessed by the Tribunal. The multiplier of

11 would have been the appropriate multiplier keeping in view the

fact that the age of the deceased was 53 years.

(iii) Non-pecuniary damages for loss of love and affection, loss of

consortium and funeral expenses which were not awarded ought to

have been awarded by the Tribunal.

7. Mr.A.K.Soni, the learned counsel for the respondent Insurance

Company, rebutted the aforesaid contentions and sought to support

the award on the ground that it was a just and fair one, apart from

being well reasoned.

8. After hearing the learned counsel for the parties, I am not

inclined to agree with the learned counsel for the appellants that the

appellants have proved on record that the income of the deceased was

` 12,000/- per month, i.e., Rs.5,104/- per month from the school and

` 7,000/- per month from private coaching. Apart from the statement

of PW1, Mrs.Prabha Gupta, wife of the deceased, there is not an iota

of evidence available on record to show that the deceased was

imparting private tuitions. In the cross-examiantion, PW1 Prabha

Gupta categorically denied that her husband had been maintaining

account of his income from private tuitions. It also cannot be lost

sight of that had the income of the deceased been ` 12,000/- per

month, as is asserted by the appellants, it would have fallen within the

tax net and there is a clear assertion in the claim petition itself that the

income of the deceased was not assessable to income-tax. Thus, in

my view, the learned Tribunal rightly took the income of the deceased

as ` 5,104/- per month.

9. As regards the deduction of one-fourth of the income of the

deceased towards his personal expenses, though the well-accepted

norm is that one-third income of the deceased should be deducted

towards his personal expenses, it has been held in several judicial

pronouncements, including the celebrated case of Sarla Verma &

Others Vs. Delhi Transport Corporation & Anotehr, (2009) 6 SCC

121 that this deduction may vary in accordance with the number of

legal representatives left behind by the deceased. In the present case,

the deceased left behind him his widow, two daughters and a son, i.e.,

4 dependants and, accordingly, the contention of the learned counsel

for the appellants that a deduction of one-fourth only should have

been made from the income of the deceased towards his personal

expenses warrants acceptance.

10. Similarly, I am of the view that the learned Tribunal, keeping

in view the fact that the deceased was only 53 years of age, ought to

have applied a higher multiplier than the multiplier adopted by it for

augmenting the multiplicand. The multiplier for the age group of

persons between 51 years of age and 55 years of age is the multiplier

of 11, as set out in the Second Schedule to the Motor Vehicles Act,

and approved by the Supreme Court in Sarla Verma's case (Supra).

Undoubtedly also, in Law the appellants are entitled to non-pecuniary

damages apart from pecuniary damages, awarded to them by the

learned Tribunal.

11. In view of the aforesaid, the total compensation payable to the

appellants is being recomputed as follows:

Taking the income of the deceased to be ` 60,000/- per annum as

assessed by the Tribunal and deducting one fourth therefrom towards

his personal expenses and maintenance and applying the multiplier of

11 thereto, the compensation payable to the appellants works out to

`4,95,000/- i.e. ` 45,000/- per annum x 11. Apart from this amount,

the appellants must be held entitled to compensation for the loss of

love and affection in the sum of ` 25,000/-, ` 10,000/- towards loss of

consortium, ` 10,000/- towards loss of estate and ` 5,000/- towards

funeral expenses, i.e., in all ` 5,45,,000/- with interest @ 12% p.a., as

awarded by the Tribunal from the date of filing of the petition till the

date of its realization. The award amount is enhanced accordingly.

12. The appeal stands disposed of in the above terms.

REVA KHETRAPAL (JUDGE) February 04, 2011 aks