Krishna Wanti & Ors. vs Satnam Singh & Ors.
2011 Latest Caselaw 4441 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO 452/1998


KRISHNA WANTI & ORS.                               ..... Appellants
                 Through:              Mr. Y.R. Sharma, Advocate

                   versus

SATNAM SINGH & ORS.                                ..... Respondents
                 Through:              None


%                           Date of Decision :   September 12, 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. The appellants in this appeal seek enhancement of the amount

of compensation of ` 1,50,000/- awarded to them by the Motor

Accidents Claims Tribunal by its judgment and award dated

21.05.1998 to the extent of ` 7,00,000/-.

2. The facts succinctly stated are that on 21.04.1988 one Ram

Prakash Dawar, commuting to Gurgaon from Delhi on his two-

wheeler scooter alongwith his wife Smt. Krishna Wanti, met with a

road accident at Smalkha Chowk near Kapashera More, when his

scooter was hit by a truck driven by the respondent No.1 in a rash and

negligent manner. He succumbed to the injuries sustained by him

five days later, i.e., on 26.04.1988. His legal representatives filed a

Claim Petition seeking compensation for his untimely demise in the

aforesaid road accident, in which the driver of the offending vehicle

was arrayed as the respondent No.1, the owner as the respondent No.2

and the insurer-M/s. New India Assurance Co. Ltd. as the respondent

No.3. The learned Tribunal after holding that the accident was the

outcome of the rash and negligent driving of the respondent No.1

awarded a sum of ` 1,50,000/- with interest at the rate of 12% per

annum to the claimants from the date of the institution of the petition

till its realisation with a direction to the respondent-Insurance

Company to deposit the award amount in the manner apportioned by

it.

3. Aggrieved by the meagre amount of compensation awarded to

them, the appellants have preferred the present appeal seeking

enhancement of the award amount. The respondents No.1, 2 and 3

though duly served with the notice of the institution of the appeal

have not cared to contest the appeal. Accordingly, I have heard Shri

Y.R. Sharma, the learned counsel for the appellants and scrutinized

the records with his assistance.

4. Mr. Sharma has assailed the award principally on four grounds:

(i) The learned Tribunal wrongly assessed the income of the

deceased to be in the sum of ` 25,000/- per annum on the

date of the accident while, in fact, his income was `

3,000/- to ` 4,000/- per month on the date of the

accident. The learned Tribunal also did not take into

account the future prospects of increase in the income of

the deceased.

(ii) The learned Tribunal erred in deducting one-third (1/3rd)

towards the personal expenses of the deceased, whereas

the deduction could not have been more than one-fourth

(1/4th) of the income of the deceased keeping in view the

fact that the deceased had five dependent family

members, namely, his wife, two sons and two daughters.

(iii) The learned Tribunal ought to have awarded non-

pecuniary damages towards the loss of love and affection

of the deceased.

(iv) The learned Tribunal ought to have awarded ` 15,000/-

which was the amount of expenditure incurred by the

legal representatives of the deceased between the date of

the accident and the date of his demise on his medical

treatment, medicines, conveyance and funeral expenses.

5. The learned counsel for the appellants has taken me through the

testimony of PW4 Smt. Krishna Wanti, the wife of the deceased, who

deposed that her husband during his life time was running a shop at

Amar Colony, earning thereby a sum of ` 5,000/- per month, and

proved on record the Assessment Order of her husband for the year

1981-82 as Ex.PW4/1; and the testimony of PW2 Shri Tirath Ram

Gupta, who testified that the deceased was running his own business

for the last 25 years through shop No.C-34, Amar Colony Market,

Lajpat Nagar, earning thereby ` 3,000/- to ` 4,000/- per month at the

time of his death. He deposed that the deceased was dealing in

mattresses, quilts, etc. and was also having a grinding machine for

grinding masalas, and that his business would have flourished and he

would have earned ` 6,000/- per month, had he not died in the

unfortunate accident.

6. On the basis of the testimonies of the aforesaid two witnesses,

the learned counsel for the appellants contends that the income of the

deceased was erroneously assessed by the learned Tribunal to be in

the sum of ` 25,000/- per annum. He relied upon the judgment of this

Court rendered in the case of Asha Gupta & Ors. vs. Ramji Lal &

Anr., I (2003) ACC 272. In the said case, the widow of the deceased

had proved on record that the deceased was maintaining two cars,

paying ` 1,400/- as rent for his shop and ` 300/- towards the school

fees of each of his children. The Tribunal, after considering the

aforesaid evidence on record, assessed the annual income of the

deceased on the date of the accident to be in the sum of ` 55,000/- per

annum, and relying upon the judgments in the cases of General

Manager, Kerala State Road Transport Corporation vs. Susamma

Thomas, 1994 ACJ 1 and Sarla Dixit and Anr. vs. Balwant Yadav &

Ors., 1996 ACJ 581, took into account the future prospects to the

deceased to the extent of hundred percent, thereby ascertaining the

average annual income of the deceased to be in the sum of `

1,10,000/- per annum.

7. In the present case, the income-tax assessment order of the

deceased, Ex.PW4/1 for the assessment year 1981-82 shows that the

income of the deceased was assessed by the income-tax authorities to

be in the sum of ` 12,300/- for the said assessment year. The

deceased met with a road accident six years later, in the year 1988

and no evidence in respect of his income for the said year is on

record. Accordingly, keeping in view the nature of the business of

the deceased and the general rise in prices, the Tribunal held that the

income of the deceased by then would have risen, and accordingly

assessed the income of the deceased to be in the sum of ` 25,000/-

per annum on the date of the accident. I see no cogent reason to

interfere with the aforesaid assessment of the learned Tribunal of the

income of the deceased on the date of the accident. As regards future

increase in the income of the deceased, there is no evidence on record

to suggest that the deceased who was 55 years of age on the date of

the accident would have, with the passage of time, earned more than

he was earning on the date of the accident. The reliance placed by the

learned counsel for the appellant upon the judgment of Asha Gupta

(supra) is, therefore, misplaced. It would be apposite to note that in

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

Corporation and Anr. (2009) 6 SCC 121, with a view to ensure

uniformity in the computation of compensation payable to the legal

representatives of victims of motor accidents, the Supreme Court has

laid down guidelines to be followed by all Tribunals and High Courts,

which, inter alia, provide as under:-

"In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the

deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words „actual salary‟ should be read as „actual salary less tax‟]. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

8. In view of the aforesaid law laid down by the Supreme Court,

no interference is called for in the findings of the learned Tribunal as

regards the assessment of the average annual income of the deceased.

As regards the contention of the learned counsel for the appellants

that, keeping in view the fact that the deceased had five dependent

family members, a deduction of not more than one-fourth (1/4th) from

the income of the deceased towards his personal expenses would be

justified, I find substance in the said contention. After deducting

one-fourth (1/4th) from the annual income of the deceased, the annual

loss of dependency of the appellants works out to ` 18,750/- per

annum. As regards the multiplier to be adopted for augmenting the

said amount, the deceased fell in the age group of persons between 51

years to 55 years of age and the appropriate multiplier for the said age

group of victims has been held to be the multiplier of 11 by the

Supreme Court in the case of (Smt.) Sarla Verma (supra). I,

therefore, also accept the contention of the learned counsel for the

appellants that the multiplier of 11 instead of the multiplier of 8

would be the appropriate multiplier in the instant case. Thus

calculated, the total loss of dependency of the appellants comes to `

2,06,250/- (Rupees Two Lakh Six Thousand Two Hundred and Fifty

Only).

9. The learned Tribunal has awarded a sum of ` 14,000/- towards

the loss of consortium and loss of estate of the deceased. I award a

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

deceased, ` 5,000/- towards the expenses incurred by the appellants

on the medical treatment of the deceased, and ` 5,000/- towards the

funeral and last rites of the deceased, that is, in all a sum of

` 2,40,250/-, which may be rounded off to ` 2,40,500/- (Rupees Two

Lakh Forty Thousand and Five Hundred Only).

10. The award amount is accordingly enhanced by a sum of `

90,500/-. The Insurance Company shall deposit the enhanced amount

of compensation with interest at the rate of 7.5% per annum from the

date of the institution of the petition till the date of realisation with

the Registrar General of this Court within 30 days of the passing of

this order. In view of the fact that the learned Tribunal held the

liability of the Insurance Company to be limited to the extent of `

1,50,000/-, the Insurance Company is granted the right to recover the

enhanced amount of compensation paid alongwith the interest thereon

from the owner of the offending vehicle, the respondent No.2 herein.

11. Mr. Y.R. Sharma, the learned counsel for the appellants No. 2

to 5 states that the appellant No.1-Smt. Krishna Wati has since died

on 3rd May, 2002 and her name be deleted from the array of parties.

It is ordered accordingly. The share of the appellant No.1 shall now

enure to the benefit of the surviving appellants and shall be

apportioned equally between the appellants No.2 to 5 on filing of

amended memo of parties by the counsel for the appellants.

12. The appeal is allowed to the aforesaid extent. There shall be no

order as to costs. The records of the Claims Tribunal be sent back

forthwith.

REVA KHETRAPAL (JUDGE) September 12, 2011 km