Tinku & Others vs Hawa Singh & Others
2011 Latest Caselaw 4503 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Judgment: 14.09.2011

+                    MAC Appeal No 176/2011

TINKU & OTHERS                 .                   ...........Appellants
                          Through:       Mr. Manish Maini, Advocate.

                    Versus

HAWA SINGH & OTHERS                                ..........Respondents
                 Through:                Ms. Suman Bagga, Advocate.
                 AND

                    MAC Appeal No 178/2011

SANJEEV KUMAR & ANOTHER                            ...........Appellants
                  Through:               Mr. Manish Maini, Advocate.

                    Versus

HAWA SINGH & OTHERS                                ..........Respondents
                 Through:                Ms. Suman Bagga, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                 Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 These are two appeals filed by the claimants of two victims.

Sanjeev Kumar is the father of the victim Sawan Kumar who was

aged 5 years on the date of the accident. In this case, the Tribunal

had awarded a sum of Rs.2,80,000/- as damages of which

Rs.1,25,000/- was calculated as 'loss of dependency', Rs.5,000/- as

funeral expenses, pecuniary damages to the tune of Rs.75,000/-

and non pecuniary damages also to the tune of Rs.75,000/-. The

Supreme Court in the case of R.K. Malik and other Vs. Kiran Pal

and others 2007 ACJ 2010 has considered the law with regard to

compensation to be awarded in a case of child victim; this has

been followed by subsequently by a Bench of this Court in

reported in II (2010) ACC 9 National Insurance Company Ltd. Vs.

Farzana; in this case the child victim was aged 7 years; a Bench of

this Court relying upon the judgment of R.K. Malik (Supra) had

awarded a sum of Rs.75,000/- under the head of 'pain and

sufferings' and another sum of Rs.75,000/- for 'loss of future

prospects'; this sum of Rs.1,50,000/- was awarded under the head

of 'non-pecuniary damages'; income of the child in view of the

judgment of R.K. Malik (Supra) was taken at Rs.15,000/- per

annum which figure was arrived at after taking guidance from the

IInd Schedule of Section 163-A of the Motor Vehicle Act; to this

the multiplier of 15 was applied; Rs.2,25,000/- would be the

amount under the pecuniary head and thus complied with the sum

of Rs.1,50,000/- awarded under the head of 'non-pecuniary

damages totaling a sum of Rs.3,75,000/-. The Award requires

modification on this count. The impugned Award not following this

principle has committed an error; the impugned Award is

accordingly modified and the claimants of the child victim are

accordingly entitled to Rs.3,75,000/- which is inclusive of the

interim award of Rs.50,000/- already paid; this amount shall carry

an interest @ 7.5% per annum from the date of filing of the

petition till realization.

2 The second part of the Award relates to the claim filed by

the legal representatives of deceased Sheela. As per the

deposition on oath and in terms of the affidavit filed by the

petitioner, deceased Sheela was earning Rs.9,000/- per month; the

submission of learned counsel for the appellant that in terms of

the salary certificate produced by PW-3 her salary income was

evidenced at Rs.18,269/- is clearly beyond the pleading; the

petitioner who is the son of the victim being in the best know how

of the salary of his mother has categorically deposed that she was

drawing the salary of Rs.9,000/- per month. In this view of the

matter, the Tribunal had correctly appreciated that the salary of

the victim was Rs.9,000/- per month. The victim had two married

sons and two married daughters. The Court had noted that in the

claim petition as also the affidavit by way of evidence filed by the

witness of the claimants, there was not a whisper anywhere in

either that they were financially dependent upon their deceased

mother Sheela. The class of legal representatives is distinct from

the class which is financially dependent upon the deceased. The

definition of a 'legal representative' as a claimant under the M.V.

Act has been noted by the Apex Court in I (1987) ACC 475 Gujarat

State Road Transport Corporation, Ahmedabad Vs. Ramanbhai

Prabhatbhai & another. The Apex Court had noted that expression

'legal representative' has not been defined anywhere in the Motor

Vehicle Act; this definition finds mention under Section 2 (11) of

the Code of Civil Procedure; i.e. a person who represents the

estate of the deceased; a clue had also been taken from the

proviso to Sub-section (1) of Section 110-A of the Motor Vehicle

Act which expressly states (i) that an application for compensation

may be made by the legal representatives of the deceased or their

agent and (ii) that such an application shall be made on behalf of

or for the benefit of all the legal representatives. In this case, the

Apex Court had noted that a claim petition even by the brothers of

the deceased was maintainable. In MAC Appeal No 288/2011

titled Smt. Shakuntal & Others VS. Sh. Naresh Kumar & others

decided on16.05.2011, a Bench of this Court had noted that two

married daughters of the victim were not stricto senso dependent

upon the deceased; however they are a part of the family and they

may benefit from the gifts and cash amounts which may be given

to them by their deceased parents. These factors have been

correctly construed and noted by the Tribunal; since the two sons

and two married daughters had neither averred in the claim

petition and nor deposed on oath that they were financially

dependent upon their deceased mother; their financial

dependency was rightly not taken into account; however a lump

sum compensation of Rs.2 lacs was awarded to them under the

non-pecuniary head i.e. for 'loss of love and affection' and

another sum of Rs.2 lacs for 'loss of estate'. These amounts of

Rs.4 lacs would even otherwise off set and would balance the

amount not awarded for 'loss of dependency'. A separate amount

of Rs.10,000/- has also been awarded for funeral expenses. The

findings in this part of the Award merits no interference.

3 Both the appeals are disposed of in the above terms.

INDERMEET KAUR, J.

SEPTEMBER 14, 2011 a