Bhagwati Devi And Ors. vs D.T.C. And Anr.
2011 Latest Caselaw 4459 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO 235/1991

BHAGWATI DEVI AND ORS.                            ..... Appellants
                            Through:   Mr. Navneet Goyal, Advocate.

                   versus

D.T.C. AND ANR.                                   ..... Respondents
                            Through:   Ms. Sushma Sachdeva, Advocate.


%                           Date of Decision : September 13, 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

: REVA KHETRAPAL, J.

1. The appellants in this appeal are the legal representatives of the

deceased Ramesh Kumar, who seek to assail the judgment and award

dated 23.08.1991 passed by the learned Motor Accident Claims

Tribunal, Delhi, whereby a sum of ` 1,44,000/- with interest at the

rate of 12% per annum from the date of the filing of the petition till

the date of the realisation, was awarded to the appellants on account

of the unfortunate death of the said Ramesh Kumar in a road accident.

2. The concise facts are that on 02.09.1984, the deceased was

going on a three-wheeler scooter bearing No.DER-1887 from

Vishwas Nagar via Wazirabad bridge, and after coming on Alipur

Road had taken a turn for reaching Rajpur Road, when he was hit by a

Delhi Transport Corporation bus bearing No. DEP-8356, driven

recklessly and negligently by the respondent No.2. A claim Petition

under Section 92-A and Section 110-A of the Motor Vehicles Act,

1939 was filed by his legal representatives claiming a sum of

` 10,00,000/- by way of compensation, which culminated in the

passing of the aforesaid award. The main ground of challenge to the

award is that the award has not been passed in accordance with the

well-settled principles of law and resultantly the appellants have been

awarded a very meager amount as compensation for the death of the

deceased, who was a young man of 26 years and the sole bread-earner

of the appellants being his widow, his four minor children and his

parents.

3. Mr. Navneet Goyal, the learned counsel for the appellants, has

assailed the award principally on four grounds:

(i) The learned Tribunal erred in taking the income of the

deceased on the date of his demise to be in the sum of ` 750/-

per month whereas, in fact, it stands established on record that

the deceased was earning a sum of ` 2,000/- per month on the

said date. The assessment of the average annual income of the

deceased is also not in accordance with law as the future

prospects of increase in the income of the deceased have not

been taken into consideration.

(ii) The learned Tribunal though has made no deduction

towards the personal expenses of the deceased, a deduction of

one-fifth of the income of the deceased towards his personal

expenses and maintenance would be justified.

(iii) The learned Tribunal erred in applying the multiplier of

16 instead of the multiplier of 17, which is the appropriate

multiplier keeping in view the fact that the deceased was in the

age group of victims between 26 to 30 years of age.

(iv) No non-pecuniary damages whatsoever and no funeral

expenses have been awarded to the appellants by the learned

Tribunal.

4. In order to substantiate his aforesaid contentions, Mr. Goyal,

the learned counsel for the appellants, has taken me through the

testimonies of the PW8 - Smt. Bhagwati Devi, the widow of the

deceased; PW1 - Pramod Kumar, an independent witness and a cloth

vendor; PW2 -Nand Kishore, a three-wheeler scooter driver; PW3 -

Anil Kumar, who was also engaged in the same business as the

deceased of selling clothes in weekly bazaars and PW5 - Gokul

Parsad, an official from R.T.O Office Rajpur Raod, Delhi, who

proved on record the licence issued in favour of the deceased for

driving a three-wheeler scooter and motorcycle valid for the period

from 24.10.1983 to 23.10.1986; and PW11 - Udai Raj Giri, the father

of the deceased. He argued that the cumulative effect of the

testimonies of these witnesses is that it stands established beyond any

doubt that the deceased was engaged in the business of selling clothes

in weekly bazaars in the evenings, thereby earning a sum of ` 50/- to

60/- per day. He had also purchased a three-wheeler scooter which he

used to drive in the mornings in order to supplement his earnings.

PW8 - the widow of the deceased and PW11 - the father of the

deceased, categorically stated on oath that the deceased was

contributing a sum of ` 2,000/- per month towards the household

expenses. PW11 clarified that the deceased used to earn ` 50/- to

` 60/- per day by driving three-wheeler scooter and ` 50/- to ` 60/-

per day by sale of clothes in the 'patri' bazaars. The testimony of this

witness is borne out by the tehbazari receipts (Exhibit PW11/2 to

Exhibit PW11/52) and receipts of purchase of clothes (Exhibit

Pw11/53 to Exhibit PW11/69) and the driving licence (Exhibit

PW5/1) of the deceased authorizing him to drive a three-wheeler

scooter.

5. PW11 also proved on record the fact that the three-wheeler

scooter bearing No. DER-1887 had been purchased by the deceased

from one Shri Jai Kishan for a sum of ` 17,900/-, out of which

` 4,900/- was paid as advance vide receipt dated 28.08.1984 Exhibit

PW11/1. He also proved on record the 'tehbazari' receipts issued by

Municipal Corporation of Delhi as Exhibit PW11/2 to Exhibit

PW11/52 for the 'patri' sales carried out by the deceased at the

various weekly bazaars and the receipts of purchase of clothes

including petticoats, blouse pieces and saree falls from 'Shiv Rubia

House' as Exhibit PW11/53 to Exhibit PW11/69. He stated that after

the demise of the deceased, the three-wheeler scooter purchased by

him was returned to the vendor, Shri Jai Kishan as the appellants were

not able to pay the balance amount of ` 13,000/- owed to the said Shri

Jai Kishan while the sum of ` 4,900/- paid as advance along with

` 100/- paid towards insurance policy and other expenses were

retained by the said Jai Kishan for meeting repair expenses of the

three-wheeler scooter.

6. The aforesaid testimonies of PW8 and PW11 are corroborated

by the testimonies of PW1 - Pramod Kumar, PW2-Nand Kishroe,

PW3 - Anil Kumar and PW5-Gokul Parsad. PW1 and PW3 have

both stated that the deceased was selling clothes in weekly bazaars

held at Shastri Nagar, Jahangirpuri, Rani Bagh, Malka Ganj, Ashok

Vihar, Kishan Ganj, Railway Colony etc., at a profit margin of around

25%, earning thereby ` 50/- to 60/- per day. PW2 deposed that the

deceased used to ply his three-wheeler in the mornings and in the

evenings he used to sit in the weekly 'patri' bazaars for selling

clothes. PW5, an official from the office of R.T.O., Rajpur Road,

Delhi proved on record the driving licence bearing No.83/R-6606

(Exhibit PW5/1) issued in the name of the deceased for driving a

three-wheeler scooter and motorcycle.

7. The testimonies of the aforesaid witnesses could not be shaken

in cross-examination and I am, therefore, inclined to agree with the

submission of Mr. Goyal that the assessment of the income of the

deceased by the learned Tribunal is not correct. I see no reason to

disbelieve the testimonies of PW8 and PW11, the wife and the father

of the deceased respectively, that the deceased was contributing a sum

of ` 2,000/- per month towards household expenses. However, even

assuming there is a slight exaggeration on the part of the aforesaid

witnesses, in my view, the deceased could not have been earning less

than ` 1,500/- per month. He was a young man of 26 years, and had

he not met with the unfortunate accident undoubtedly he would have

earned more as a scooter driver (who falls in the category of a skilled

worker) and also by selling garments in the various weekly bazaars.

Thus, I am inclined to assess the average annual income of the

deceased to be in the sum of ` 2,250/- per month [that is ` 1,500/-

(current income) plus ` 750/- (anticipated increase in income) =

` 2,250/- per month]. Deducting one-fifth therefrom towards the

personal expenses of the deceased (though no deduction had been

made by the learned Tribunal), the average monthly loss of

dependency of the legal representatives of the deceased works out to

` 1,800/- per month, that is, ` 21,600/- per annum.

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

Corporation and Anr. (2009) 6 SCC 121, the Supreme Court has

tabulated the appropriate multipliers to be applied for augmenting the

multiplicand constituting the loss of dependency of the appellants,

keeping in view the age of the deceased. In the present case, as

noticed above, the deceased fell in the age group of victims between

26 to 30 years of age and thus the appropriate multiplier to be adopted

would be the multiplier of 17, which is the multiplier approved of in

the case of Sarla Verma (supra). Thus calculated, the total loss of

dependency of the appellants works out to ` 21,600/- x 17 =

` 3,67,200/-, which may be rounded off to ` 3,67,500/- (Rupees

three lakh sixty seven thousand and five hundred only).

9. Apart from the aforesaid amount of pecuniary damages, I am

inclined to hold that the appellants are entitled to a sum of ` 2,500/-

towards the funeral expenses and last rites of the deceased. The

appellants are also held entitled to receive a sum of ` 5,000/- each

towards the loss of consortium, towards the loss of love and affection

of the deceased and towards the loss of the estate of the deceased, that

is, in all a sum of ` 3,85,000/- (Rupees three lacs and eighty five

thousand only) is awarded to the appellants.

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

` 2,41,000/-. The enhanced amount shall enure solely to the benefit

of the appellant No.1, the widow of the deceased, the parents of the

deceased having died during the pendency of the appeal. The

appellants are also held entitled to receive interest at the rate of 7.5%

per annum on the enhanced amount from the date of the filing of the

petition till the date of the realisation. The respondent No.1 is

directed to deposit the entire award amount as enhanced by this Court

along with the interest thereon, after adjusting the amount already

paid, if any, with the Registrar General of this Court within 30 days

from the date of the passing of this order.

11. The appeal is allowed in the aforesaid terms.

12. There shall be no order as to costs.

REVA KHETRAPAL (JUDGE) September 13, 2011 ak