Jai Narain & Ors. vs State Of Haryana & Ors.
2011 Latest Caselaw 2665 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+              FAO 28/1996

JAI NARAIN & ORS. .....               Appellants
                   Through:           Ms. Manjeet Chawla, Advocate
         versus

STATE OF HARYANA & ORS.                 ..... Respondents
                 Through:             Mr. Yashpal Rangi, Advocate
                                      for the respondent

%                        Date of Decision : 18th May, 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?

                         ORDER (ORAL)

: REVA KHETRAPAL, J.

1. By way of this appeal, the appellants seek enhancement of the

amount of compensation awarded to them by the Motor Accident

Claims Tribunal in MACT Case No.285/1985 on account of the death

of Smt. Shanti Devi in a motor vehicular accident.

2. Before adverting to the facts necessary for the decision of the

present appeal, it deserves to be noted that the records of the Motor

Accident Claims Tribunal which were requisitioned by this court,

were stated to be missing from the record room of this court as well

as from the record room of the trial court. Learned counsel for both

the parties thereupon agreed that the case may be disposed of without

the records and on the basis of the facts recorded by the Claims

Tribunal in the award rendered by it.

3. On 14.09.1985 one Smt. Shanti Devi (hereinafter referred to as

"the deceased") was travelling with a co-passenger in bus bearing No.

HYR-3509, which fell in a ditch near Gopalpur village and turned

turtle. While the co-passenger of Smt. Shanti Devi suffered injuries,

Smt. Shanti Devi died in the accident. A claim petition was preferred

by the appellants-legal heirs of the deceased being her husband and

three sons, wherein it was stated that the deceased was 43 years of

age and was doing agricultural work, wherefrom she was earning

Rs.700/- per month. Compensation in the sum of Rs. 3 lacs was

claimed by the appellants against the driver of the offending bus and

its owners viz., the State of Haryana and the Haryana Roadways.

4. The factum of accident was not disputed by the respondents but

the allegations of negligence on the part of the bus driver were sought

to be rebutted. The Claims Tribunal, on the basis of the evidence on

record, awarded a sum of Rs.1,68,000/- in favour of the appellants

with the direction that out of the amount of compensation awarded,

the respondent No.3 (driver) would pay 20 per cent and the rest of the

80 per cent of the award amount would be paid by the respondents

No. 1 and 2 along with interest at the rate of 12 per cent per annum

from the date of the petition till the date of realization.

5. Aggrieved by the aforesaid judgment and award of the Claims

Tribunal, the appellants have preferred the present appeal for

enhancement, primarily on the ground that the income of the

deceased has been grossly under-estimated by the Claims Tribunal

and, accordingly, the quantum of compensation awarded on account

of the loss of dependency is a very meager amount. It is also urged by

Ms. Manjeet Chawla, the learned counsel for the appellant that the

Claims Tribunal grossly erred in apportioning the liability to pay the

compensation in the ratio of 80:20 between the respondents No. 1 and

2 on the one hand and the respondent No.3-driver on the other. Ms.

Chawla contends that the respondent No.3-driver was merely an

employee of the respondents No. 1 and 2 and, the respondents No. 1

and 2 who were the owners of the offending vehicle were vicariously

liable to pay the entire compensation. The Claims Tribunal ought to

have held the liability of all the respondents to be joint and several.

Also, judicial notice should have been taken by the Claims Tribunal

of the impracticability of recovering the award amount from the

driver of the bus in question.

6. Another contention sought to be urged by Ms. Manjeet Chawla

is that the Claims Tribunal, in the instant case, while awarding

pecuniary compensation to the appellants, has altogether ignored the

fact that the appellants were also entitled to non-pecuniary damages

under the heads of loss of love and affection and loss of the estate of

the deceased, and some amount towards the funeral expenses of the

deceased. It is also contended that the multiplier adopted in the

instance case ought to have been the multiplier of 15 as set out in the

Second Schedule to the Motor Vehicles Act, instead of the multiplier

of 14 adopted by the Tribunal.

7. Mr. Yashpal Rangi, the learned counsel for the respondent,

sought to rebut all the aforesaid contentions of Ms. Manjeet Chawla

and to support the award passed by the Tribunal. As regards the first

submission of Ms. Chawla with regard to the assessment of the

income of the deceased by the Claims Tribunal, Mr. Rangi submitted

that though in the claim petition itself it had been claimed that the

deceased was earning Rs. 700/- per month from agricultural work, as

noted by the Claims Tribunal PW6, the husband of the deceased, in

the course of his testimony, had inflated the income of the deceased

and deposed that the deceased was earning Rs.1,000/- per month and

was also doing domestic work for which he had to engage a maid

servant. The learned counsel also contended that there was no

documentary evidence on record to suggest that the deceased was

doing agricultural work, in as much as neither the „Jamabandi‟ nor

the „Girdawari‟ had been produced by the appellants to prove that

they owned agricultural land and if so, how much. On the aspect of

apportionment of liability between the owners of the offending bus

and the driver thereof in the ratio of 80:20, Mr. Rangi contended that

the said apportionment was just and proper and called for no

interference from this Court. With regard to omission of the Tribunal

to award non-pecuniary damages, however, Mr. Rangi does not, as

indeed he cannot, dispute that no non-pecuniary damages had been

awarded by the Claims Tribunal at all. Finally, on the aspect of

multiplier , the contention of Mr. Rangi is that multiplier for the age

group of victims between 41 years and 45 years of age is the

multiplier of 14, which has been held to be appropriate multiplier for

the said age group by the Hon‟ble Supreme Court in Smt. Sarla

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

121.

8. Having heard the counsels for the parties, I am of the view that

the contention of the learned counsel for the appellant that the income

of the deceased has been grossly under-estimated by the Claims

Tribunal deserves to be accepted. In the claim petition, no doubt, it

has been mentioned that the deceased was earning a sum of Rs. 700/-

per month from agricultural work, but this could not have been

interpreted by the Claims Tribunal to mean that the deceased was not

rendering any household services to her family. The absence of

„Jamabandi‟ and „Khasra Girdawari‟ on the record also do not present

any difficulty in assessing the income of the deceased, for, it is

nowhere stated in the claim petition that either the deceased or her

husband owned any agricultural land. PW6 Jai Narain, the husband of

the deceased, in his cross-examination, stated that he goes to the

fields with the labourers but as he is suffering from asthma, he cannot

work. He also stated that he sells agricultural produce to villagers. He

further deposed that he had engaged two persons for doing the

agricultural work at the rate of Rs. 500/- and Rs. 700/- per month

respectively, one of whom he produced in the witness box, as PW8

Sh. Rajender.

9. It is a well known fact that the villagers not only till their own

lands but also work on the land of others including relatives,

neighbours, etc. The evidence of PW6-Sh. Jai Narain and the

evidence of PW8 Sh. Rajender that the deceased was engaged in

agricultural work, even assuming she owned no agricultural land of

her own, cannot therefore be discarded as unworthy of credence,

more so, as in paragraph 12 of its judgment the Claims Tribunal has

itself noted that the family of the appellants was dependent upon the

agricultural crop sold in the village. Thus, on the basis of the evidence

on record, in my view, the income of the deceased can safely be

assessed to be Rs. 700/- per month from agricultural work and Rs.

1,000/- per month for the household services rendered by her to her

family comprising of her husband and three children. I say so on the

basis of the fact that it is on record that the husband of the deceased

was a patient of asthma who was incapable of working and, thus, the

burden of running the household was almost entirely upon the

shoulders of the deceased.

10. Thus, taking the monthly income of the deceased as Rs. 700/-

per month and deducting one-fourth therefrom towards the personal

and living expenses of the deceased, the loss of dependency of the

appellants comes to Rs.525/- per month. Adding thereto Rs. 1,000/-

per month towards the value of domestic services rendered by the

deceased, the monthly loss of dependency of the appellants works out

to Rs. 1,525/- per month or say Rs.18,300/- per annum. As regards

the appropriate multiplier to be adopted for augmenting the aforesaid

multiplicand, in the present case, I am at one with the contention of

Mr. Rangi that the multiplier of 14 would be the appropriate

multiplier. I say so for the reason that the said multiplier is in

consonance with the judgment of the Supreme Court in the case of

Sarla Verma (supra), wherein it is laid down by the Supreme Court

that in order to ensure uniformity in the adjudication of motor

accident claims cases, it would be best that all Courts and Tribunals

adhere to the multipliers laid down in paragraph 19 of the said

judgment. Thus calculated, the amount of compensation awardable to

the appellants on account of loss of dependency works out to

Rs.2,56,200/-. Adding to this sum, non-pecuniary damages in the sum

of Rs. 5,000/- towards loss of consortium, Rs. 5,000/- towards the

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

the deceased and Rs. 4,000/- for the funeral expenses of the deceased,

the total amount of compensation payable to the appellants works out

to Rs. 2,75,200/-, rounded off to Rs.2,75,000/-.

11. On the question of apportionment of compensation, it is well

settled that the owner of offending vehicle is vicariously liable for the

accident caused by his driver in the course of plying of his vehicle.

The Tribunal, therefore, in my opinion erred in apportioning 20% of

the liability to pay the award amount on the respondent No.3-driver.

The liability of all the respondents ought to have been held to be and

is accordingly held to be joint and several.

12. In the result, the award amount is enhanced from Rs.1,68,000/-

to Rs.2,75,000/-(Rupees Two Lac and Seventy Five Thousand).

Interest at the rate of 12% per annum as awarded by the Tribunal

shall be payable on the award amount from the date of institution of

the petition till the date of realization. The respondents are directed to

deposit the award amount with the Registrar General of this Court

within 30 days from today, failing which they shall become liable to

penal interest as awarded by the learned Tribunal.

The appeal is allowed in above terms. Records be sent back to

the concerned Claims Tribunal.

REVA KHETRAPAL

(JUDGE) May 18, 2011/neelam