Madhu Mehra & Anr. vs Kamal Kishore & Ors.
2011 Latest Caselaw 4556 Del

                                       REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   FAO 523/2001

MADHU MEHRA & ANR.                               ..... Appellants
                   Through:           Mr. Navneet Goyal, Advocate
            versus
KAMAL KISHORE & ORS.                               ..... Respondents
                   Through:           Mr. Pawan Upadhyay and
                                      Ms. Anish Upadhyay,
                                      Advocates for the respondent
                                      No.1
                                      Mr. Pankaj Seth, Advocate for
                                      the Insurance Company

+                   FAO 269/2002

KAMAL KISHORE JAICHAND                           ..... Appellant
                  Through:            Mr. Pawan Upadhyay and
                                      Ms. Anish Upadhyay,
                                      Advocates
           versus
MADHU MEHRA & ORS.                                 ..... Respondents
                  Through:            Mr. Navneet Goyal, Advocate
                                      for the respondents No.1 and 2.
                                      Mr. Pankaj Seth, Advocate for
                                      the Insurance Company.

%                         Date of Decision : September 16, 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?


FAO No.523/2001 and FAO No.269/2002                    Page 1 of 23
 3. Whether judgment should be reported in Digest?

                          JUDGMENT

: REVA KHETRAPAL, J.

1. By this judgment it is proposed to decide two appeals , being

FAO No. 523/2001 entitled "Madhu Mehra and Ors. Versus Kamal

Kishore Jai Chand and Ors." and FAO No. 269/2002 entitled

"Kamal Kishore Jai Chand versus Madhu Mehra and Ors.", as

common questions of law and fact are involved. The first of these

two appeals has been filed by the claimants seeking enhancement of

the amount of compensation awarded by the Claims Tribunal by its

judgment dated 08.08.2001, while the second appeal has been filed by

the owner of the offending vehicle praying for the setting aside of the

aforesaid judgment on the ground that he had sold the offending

vehicle to one Jeet Singh prior to the date of the accident and

accordingly he is not liable to pay the award amount to the claimants.

2. The facts may be briefly recapitulated as follows.

3. On 01.12.1983, one Kamal Mehra, aged about 37 years, died in

a motor vehicular accident caused by the driver of Bus No.DEP-2767

under the operation of the Delhi Transport Corporation. The

deceased Kamal Mehra at the time of the accident was driving a two-

wheeler scooter. The accident took place at the INA Flyover when he

was hit by the bus in question from behind and killed at the spot. The

legal representatives of the deceased, being his widow, his son and his

mother, filed a claim petition under Section 92A and Section 110A of

the Motor Vehicles Act, 1939 claiming compensation for his untimely

demise in the aforesaid accident and impleading the respondent No.1

Shri Kamal Kishore Jai Chand - the alleged owner of the offending

bus, the respondent No.2 Daya Chand - the driver of the bus, the

respondent No.3 - the insurer of the bus and the respondent No.4 -

the Delhi Transport Corporation as party respondents to the claim

petition.

4. An application was filed by the respondent No.1 Kamal

Kishore Jai Chand under Order I Rule 10 of the Code of Civil

Procedure praying for deletion of his name on the ground that the

vehicle in question had already been sold by him to one Jeet Singh on

24th August, 1983 prior to the accident and as such the petition was

not maintainable against him. By its order dated 20.03.1985, the

Claims Tribunal dismissed the said application and held that the

vehicle in question was transferred in the name of Jeet Singh only on

14.01.1985 and that on the date of the accident, that is, on 01.12.1983

even the sale was not complete as only part consideration had been

received by the respondent No.1. It further held that as per the written

statements filed by the respondents No.2 and 4, viz., the driver of the

bus and the DTC, the respondent No.1 was stated to be the owner of

the bus on the date of the accident and in the circumstances there was

no question of deletion of the name of the respondent No.1.

5. Subsequent to this order dated 20.03.1985, an application was

filed by the respondent No.1 on 09.04.1985 seeking impleadment of

the aforesaid Jeet Singh as party respondent No.5. By an order of the

same date, in view of the fact that no objection was raised by the

learned counsel for the petitioners to his impleadment (though

without admitting any of the averments made in the application), Jeet

Singh was added as respondent No.5 to the array of parties.

6. Written statements were filed by all the respondents contesting

the claim petition. It was pleaded by the respondent No.1 that the

petition was not maintainable against him as he was not the owner of

Bus No.DEP-2767 at the time of the alleged accident because he had

already sold the said bus to Shri Jeet Singh, son of Shri Zile Singh on

24th August, 1983, much prior to the accident. The respondent No.1

further submitted that at the time of sale of the bus, the said Jeet

Singh had executed certain documents in respect of the sale, that is,

delivery receipt, cash receipt and an affidavit and undertaking. He,

the respondent No.1, did not know anything about the accident or

even about the bus route on which the bus was plying. The

respondent No.5 Jeet Singh had made the full and final payment of

the sale amount of ` 1,22,000/- to him, out of which ` 90,000/- was

paid by him through a bank draft No.657/83 dated 03.09.1983 of

Vijaya Bank and he had taken the delivery of the bus on 24.08.1983

alongwith all the relevant papers of the bus. The respondent No.2, the

driver of the bus was employed by the said Jeet Singh. He, the

respondent No.1, had sent intimation regarding the sale of the bus to

the Transport Authority, the concerned Insurance Company and the

DTC by letter dated 12.09.1983 under UPC, and in that letter had

informed about the sale of the bus to the concerned Authority, and

also enclosed with the said letter the delivery receipt issued by the

purchaser, the sale letter and the T.O. Form and requested the

Authority concerned to change/transfer the ownership of the bus in

the name of Jeet Singh, who was the owner of the bus after

24.08.1983. He also submitted that at the time of the sale he had

handed over the papers of the bus, that is, the registration certificate,

insurance, permit and fitness certificate to the owner Shri Jeet Singh

and those papers were in the possession of Jeet Singh.

7. In the written statement filed by him, the respondent No.2 -

Daya Chand admitted that on the date of the accident the bus No.

DEP 2767 was being driven by him under DTC operation on route

No. 400 from New Delhi Railway Station to Okhla. He further

admitted that the bus had started from New Delhi Railway Station at

8:50 p.m., reached the destination, that is, Okhla at 9:50 p.m. and

passed through the INA flyover approximately at about 9:10 p.m. He,

however, denied the factum of the accident and asserted that no

accident as alleged in the petition had ever taken place by the bus

driven by him with scooter of the deceased. As regards the ownership

of the bus in question, he stated that the bus was owned and possessed

by the respondent No.1 - Kamal Kishore Jai Chand.

8. The respondent No.3 - M/s. New India Insurance Company

Limited admitted that the insurance policy insuring bus No. DEP

2767 was purchased by the respondent No.1 and the said policy was

valid from 07.10.1983 to 06.03.1984. The respondent No.3, however,

asserted that though the policy covered third party risk, the liability of

the Company, if any, was limited to ` 50,000/- only.

9. The respondent No.4 - Delhi Transport Corporation in the

written statement filed by it raised the preliminary objection that the

claim petition was bad for mis-joinder of parties as it was neither the

owner, nor the driver, nor the insurer of the bus in question, which

was involved in the accident. The respondent no.4 asserted that the

bus was owned and run by the respondent No.1. The Delhi Transport

Corporation had entered into an agreement with the respondent No.1,

wherein it was specified that it would be the responsibility of the

owner to take up an insurance policy covering third party risk. It was

further provided in the said agreement that the owner would bear full

responsibility and liability for the payment of compensation and

under no circumstances the Corporation would be responsible for any

civil or criminal action arising out of any accident or any action or

tort arising out of the operation of the said vehicle. It was further laid

down that the owner would be responsible for all the acts or deeds of

the driver of the bus, who would be the employee of the owner. As

such, at the time of the accident, the driver of the offending bus was

an employee of the respondent No.1 and working under his control.

10. The respondent No.5 - Jeet Singh in the written statement filed

by him submitted that the bus No. DEP 2767 was "owned and

possessed as per record", although the same was being driven under

his management.

11. The petitioners filed replications to all the aforesaid written

statements, affirming the contents of the petition and denying all the

facts contrary to those set out in the petition. Issues were framed by

the learned Motor Accident Claims Tribunal on 19th August, 1985

and the case was listed for evidence on 29th April, 1986.

12. On 9th December, 1996 all the respondents except the

respondents No.3 and 4 were proceeded ex-parte. Thereafter, the

statement of RW1, an official of the Insurance Company was

recorded, but despite ample opportunity granted for the purpose no

evidence was adduced by any of the other respondents.

13. The learned Tribunal after analyzing the evidence adduced by

the petitioners and by the respondent No.3 - Insurance Company

passed an award in the sum of ` 95,000/- with interest thereon. The

Tribunal, however, held the liability of the Insurance Company, i.e.

the respondent No.3, to be limited to the extent of ` 50,000/- and

directed that after satisfying the entire award of ` 95,000/- with

interest, the respondent No.3 would be entitled to recover the excess

amount of ` 45,000/- with interest thereon from the owner of the bus

in question, that is, the respondent No.1.

14. Aggrieved by the meager amount of the award, the claimants

preferred an appeal, being FAO No.523/2001, claiming an enhanced

amount of ` 6,00,000/-. Subsequently, the respondent No.1 too filed

an appeal, being FAO No.269/2002, for setting aside the impugned

award insofar as it held that on the alleged date of accident the

respondent No.1 was the owner of the offending bus and directed the

Insurance Company to recover the excess amount of ` 45,000/- from

him. It is proposed to deal first with the appeal relating to

enhancement of the award amount.

FAO No.523/2001 entitled "Madhu Mehra and Ors. vs. Kamal Kishore Jai Chand and Ors.

15. On the aspect of quantum of compensation, the Claims

Tribunal assessed the salary of the deceased to be in the sum of `

1,000/- per month and the personal expenses of the deceased to be in

the sum of ` 411/- per month. Deducting the personal expenses of the

deceased from the monthly salary of the deceased, the learned

Tribunal ascertained the loss of dependency of the appellants to be in

the sum of ` 589/- per month or ` 7,068/- per annum. To augment the

said multiplicand constituting the annual loss of dependency suffered

by the legal representatives of the deceased, the Tribunal adjudged the

multiplier of 12 to be the appropriate multiplier, and thus calculated

the total loss of dependency payable to the appellants to be in the sum

of ` 84816/- (` 7068/- x 12). Adding thereto, ` 10,000/- towards the

non pecuniary damages on account of loss of expectation of life, the

total compensation payable to the appellants was assessed to be in the

sum of ` 94,816/-, rounded off to ` 95,000/- (Rupees Ninety Five

Thousand Only).

16. Mr. Navneet Goyal, the learned counsel for the respondents

No.1 and 2/claimants challenged the award on the following

grounds:-

(i) The learned Tribunal erroneously assessed the income of

the deceased to be in the sum of ` 1,000/- per month,

whereas the deceased was working with M/s. Shaw

Wallace and Company Limited and his salary should

have been assessed as ` 2,000/- per month.

(ii) The learned Tribunal ought to have taken into account

the prospects of future increase in the income of the

deceased for the purpose of the assessment of loss of

dependency of his legal representatives.

(iii) The learned Tribunal ought not to have deducted more

than one-third of the income of the deceased towards his

personal expenses and maintenance, whereas the

Tribunal had deducted more than 40% of the income of

the deceased for his personal expenses.

(iv) The multiplier of 15 should have been adopted by the

learned Tribunal instead of the multiplier of 12, keeping

in view the fact that the deceased was 37 years of age on

the date of the accident.

(v) No amount whatsoever was awarded by the learned

Tribunal towards the non-pecuniary damages, and the

award deserved to be enhanced by taking into account

non-pecuniary damages for the loss of consortium, loss

of love and affection of the deceased and loss of estate of

the deceased, as well as pecuniary damages for the

funeral expenses of the deceased.

17. As regards the first contention of the learned counsel for the

appellants regarding the salary of the deceased, apart from the

testimony of PW4, the widow of the deceased, there is nothing on

record to prove the income of the deceased. This witness, in her

testimony, stated that her husband was working in M/s. Shaw Wallace

and Company as a sales man for selling wines, and that her husband

used to give to her ` 2,000/- for household expenses. However, in her

cross examination, she stated that she did not know the address where

her husband was working and had never visited the Company where

her husband used to work. She admitted that she had not seen the pay

slip of her husband. She further admitted that her husband did not

have a Bank account, though she stated that she had a Bank account.

She stated that prior to the said company, viz., M/s. Shaw Wallace &

Company, her husband was working with another wine merchant, but

on a query put to her in this regard stated that she did not remember

the name of the said wine merchant. She stated that she did not have

any appointment letter or any other document showing that her

husband was working with any other company prior to his joining

service with M/s. Shaw Wallace & Company nor she had any

appointment letter of her husband from M/s. Shaw Wallace &

Company. In such circumstances and the employer not having been

produced in the witness box, the learned Tribunal, in my opinion,

cannot be faulted for not considering the salary of the deceased to be

` 2,000/- per month and in assessing the monthly income of the

deceased to be ` 1,000/- per month.

18. Coming next to the contention of the learned counsel for the

appellants regarding the future prospects of increase in the income of

the deceased, it is settled law that for the purpose of assessment of the

average annual income of the deceased, the future prospects of

increase in the income of the deceased may be taken into account

only where the deceased is in permanent employment and has a stable

job. In the present case, there is nothing on record to show that the

employment of the deceased was permanent in nature, and that the

deceased would have, as a matter of certainty, progressed in his

career, had he not met with the unfortunate accident which terminated

his life span. I am thus of the opinion that no addition can be made to

the income of the deceased for future increase in his salary/income. I

am fortified in coming to this conclusion from the following dicta laid

down in the case of Smt. Sarla Verma & Ors. Versus Delhi

Transport Corporation and Anr., (2009) 6 SCC 121: (SCC, Page

134).

"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."

19. As regards the third contention of the learned counsel for the

appellant regarding the forty per cent deduction made by the learned

Tribunal towards the personal and living expenses of the deceased, it

may be noted that the deceased left behind him three dependant

family members, viz., his wife, son and mother. Therefore, I am at

one with the counsel for the appellants that the deduction of not more

than one-third towards the personal and living expenses of the

deceased would have been justifiable. This would also be in

conformity with the judgement of the Supreme Court in the case of

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

dependency of the appellants would have come to ` 666.67 per month

and the annual loss of dependency to ` 8,000/- per annum.

20. In order to augment the aforesaid multiplicand constituting the

annual loss of dependency of the appellants, the Tribunal, it may be

noted, has applied the multiplier of 12 on the basis that the deceased

was around 40 years of age on the date of his accidental death. In the

absence of conclusive proof regarding the age of the deceased, the

learned Tribunal, in my view, rightly considered the deceased to be of

around 40 years of age at the time of the accident on the basis of the

post-mortem report Ex. PW.1/A, but the appropriate multiplier for the

age group of victims between 36 years and 40 years as laid down in

the case of Sarla Verma (supra) is the multiplier of 15. Applying the

multiplier of 15 to the multiplicand of ` 8,000/- per annum, the total

loss of dependency of the appellants works out to ` 1,20,000/-.

21. In addition to the aforesaid sum, the appellants are also held

entitled to non-pecuniary damages under the heads of loss of

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

estate of the deceased and pecuniary damages under the head of

funeral expenses, which are assessed to be in the sum of ` 5,000/-

each, with the clarification that in a case under the Motor Vehicles

Act where compensation is claimed by the legal representatives of a

deceased victim, compensation on account of loss of expectancy of

life is not to be awarded. The award of the sum of ` 10,000/- awarded

by the Tribunal under the aforesaid head is accordingly set aside. The

total compensation payable to the appellants, thus, works out to be in

the sum of ` 1,40,000/- in all (Rupees One Lac Forty Thousand

Only).

22. The award amount is accordingly enhanced by ` 45,000/-

(Rupees Forty Five Thousand Only).

23. Resultantly, this appeal is partly allowed in the above terms.

FAO 269/2002 titled as "Kamal Kishore Jai Chand versus Madhu Mehra and Ors."

24. Adverting now to the appeal of Sh. Kamal Kishore Jai Chand

(Respondent no. 1 in FAO no. 523/2001), the sole contention of the

learned counsel for the appellant is that the learned Tribunal erred in

holding that on the date of the accident in question the appellant was

the owner of the offending bus bearing No.DEP-2767, and in

directing the Insurance Company to recover the award amount

exceeding the limit of the liability of the Insurance Company, that is,

the amount in excess of ` 50,000/-, from the appellant.

25. The learned counsel vociferously contended that the respondent

No.5 Jeet Singh was the owner of the bus from 24.08.1983 and the

respondent No.1 had no concern with the said bus after the sale of the

bus with effect from 24.08.1983. I am not inclined to agree with the

aforesaid contention for the reason that it is not in dispute that the

respondent No.1 was the registered owner of bus No.DEP-2767 on

the date of the accident, which took place on 01.12.1983. It is also

not in dispute that the aforesaid bus on the date of the accident was

being driven by the respondent No.2, who, in his written statement,

has admitted that the bus in question was owned and possessed by the

respondent No.1. Further, the respondent No.4-Delhi Transport

Corporation, in the written statement filed by the said Corporation has

also admitted that the bus was owned and run by the respondent No.1

under an agreement entered into between the Corporation and the

respondent No.1.

26. Furthermore, the bus in question is stated to have been sold for

a total sale consideration of ` 1,22,000/- to the respondent No.5-Jeet

Singh, and the respondent No.1 has asserted in his written statement

that he received part payment of ` 90,000/- from the respondent

No.5-Jeet Singh on 03.09.1983 and that he (Jeet Singh) had taken the

delivery of the bus on 24.08.1983 alongwith the relevant papers of the

bus. In this context, photostat copies of certain documents in respect

of the sale, that is, delivery receipt, cash receipt and an affidavit and

undertaking are relied upon by the respondent No.1. In my view,

however, the learned Tribunal has rightly held that no reliance can be

placed upon the aforesaid documents for the reason that the originals

have not been produced by the respondent No.1 nor the respondent

No.1 has appeared in the witness box to state on oath that the

photocopies produced by him are true copies of the originals, nor the

respondent No.5-Jeet Singh has come into the witness box to depose

about the veracity of the aforesaid documents. Even otherwise, these

documents show that the bus in question was transferred to the

respondent No.5 on 14.01.1985 by the Motor Licensing Officer, as is

clear from the endorsement on the application dated 18.02.1985

addressed to the Motor Licensing Officer by the respondent No.1.

Thus, from the aforesaid documents, I am unable to come to the

conclusion that on the date of the accident the respondent No.1 had

ceased to be the owner of the bus. Only part consideration appears to

have been paid by the respondent No.5 to the respondent No.1 prior

to the accident and the necessary inference, therefore, is that the sale

was not complete on the date of the accident even as per respondent

No.1's own case. There is also nothing on record to suggest that

possession of the vehicle was handed over to the respondent No.5 by

the respondent No.1 prior to the date of the accident. As already

stated hereinabove, the respondent No.1 has not appeared in the

witness box to state on oath that he had handed over the possession of

the bus in question to the respondent No.5 on 24.08.1983 as pleaded

by him. On the other hand, the respondent No.2, who was the driver

of the bus on the date of the accident, and the concerned official of

the Delhi Transport Corporation who was plying the bus, have both

stated that the bus was owned and possessed by the respondent No.1.

27. There is yet another circumstance which persuades me to hold

that the respondent No.1 was the owner of the bus on the date of the

accident. The respondent No.1 himself had got the bus released on

superdginama (Ex.P4) on 05.12.1983. If the bus was not owned and

possessed by him, certainly, to my mind, he would not have filed a

superdginama for the release of the said bus. Yet again, the insurance

policy effective on the date of the accident was valid from 07.10.1983

to 06.03.1984. If, as alleged by the appellant, the sale had been

completed on 24.08.1983 and the concerned authorities had been

intimated by the letter dated 12.09.1983, where was the question of

the insurance policy being purchased on 07.10.1983 in the name of

the appellant and not in the name of the respondent No.5-Jeet Singh.

28. The learned counsel for the appellant during the course of

hearing put forth the contention that the respondent No.1 should be

absolved of the liability in view of the fact that the respondent No.5

had admitted that the offending bus was running under his

management. I am afraid the aforesaid contention has no merit for

the reason that the respondent No.5 has nowhere admitted that the bus

was owned by him or even possessed by him on the date of the

accident. In his written statement, all that he stated was that the bus

was owned as per the records. Even otherwise, at the risk of

repetition, it is stated that the respondent No.5-Jeet Singh has not

appeared in the witness box of his own accord nor has he been

summoned by the respondent No.1 to substantiate the case of the

respondent No.1 that the bus was owned and possessed by him (the

respondent No.5) on the date of the accident. The respondent No.1

being the registered owner of the bus, the burden of proof lay heavily

upon him to prove that the possession of the bus had been handed

over by him to the respondent No.5 prior to the accident. In my

opinion, he has miserably failed to discharge the same. The necessary

corollary is that the respondent No.1 must be held to be the owner of

the offending bus and in possession of the said vehicle on the date of

the accident. The inevitable conclusion is that it must be held that

there is no merit in the present appeal. The same is accordingly

dismissed as being devoid of merit.

29. Resultantly, FAO No.523/2001 is partly allowed and FAO

No.269/2002 is dismissed.

30. There will be no order as to costs. Records of the Claims

Tribunal be sent back.

REVA KHETRAPAL (JUDGE) September 16, 2011 km /ak