Ram Devi & Anr. vs Raj Kumar & Ors.
2011 Latest Caselaw 4558 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       FAO 103/2000

RAM DEVI & ANR.                                   ..... Appellants
                            Through:   Ms. Aruna Mehta, Advocate

                   versus

RAJ KUMAR & ORS.                                      ..... Respondents
                            Through:   None

%                           Date of Decision : September       , 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 present appeal has been preferred by the appellants for

enhancement of the quantum of compensation awarded by the Motor

Accident Claims Tribunal by its judgment and award dated 1.11.1999

passed in Suit No-11of 1989, whereby and whereunder the appellants

were held entitled to an award of ` 60,000/ with the interest thereon at

the rate of 10% per annum from the date of filing of the petition till

realization.

2. The brief facts which led to the filing of the appeal are that on

31.10.1988 at about 11 a.m., one Subhash Chand (hereinafter referred

as "the deceased") was going from his house to Kirti Nagar.While he

was crossing the road in front of Kishan Ganj dispensary a scooter

bearing no - DBH 5633, coming from the Sarai Rohilla side at a high

speed, without blowing any horn, hit the deceased with full force. As

a result of the forceful impact, the deceased sustained grievous

injuries to which he succumbed on 11.11.1988. A claim petition was

filed by the widow and son of the deceased claiming compensation

for the untimely demise of the deceased in the aforesaid accident.

3. In order to quantify the compensation payable to the appellants,

the learned Claims Tribunal, in view of the fact that there was no

documentary evidence on record for establishing the income of the

deceased, took into consideration the minimum wages applicable to a

semi-skilled worker as on the date of the accident, i.e. on 31.10.1988.

Since the minimum wages applicable to a semi- skilled worker as on

16.03.1988 were in the sum of ` 635/- per month and the same as on

1.5.1989 were in the sum of ` 848/- per month, the Tribunal deemed

it appropriate to take the average of the aforesaid figures, arriving

thereby at the sum of ` 750/- per month as the monthly salary of the

deceased. Deducting one-third therefrom towards the personal and

living expenses of the deceased, the Tribunal calculated the loss of

dependency of the appellants in the sum of ` 500/- per month or say

` 6,000/- per annum. To the aforesaid multiplicand, the Tribunal,

considering the age of the deceased to be 50 years as set out in the

post mortem report, applied the multiplier of 10, thereby calculating

the total compensation payable to the appellants to be in the sum of

` 60,000/-.

4. Aggrieved by the quantum of compensation awarded by the

Tribunal, the appellants have filed the present appeal seeking

enhancement of the same and assailed the award of the Tribunal on

the following grounds:

(i) The Claims Tribunal erred in assessing the monthly income of

the deceased at ` 750/- per month on the basis of minimum

wages payable to a semi- skilled worker. The Tribunal ought to

have taken the income of the deceased to be ` 1,500/- per

month as stated by the wife of the deceased. The Tribunal

further erred in not considering the future increase in the

income of the deceased.

(ii) The Claims Tribunal erred in considering the age of the

deceased to be 50 years on the basis of the post mortem report,

while in fact the deceased was aged only 37 years at the time of

the accident. The Tribunal accordingly erred in applying the

multiplier of 10 instead of the multiplier 15.

(iii) The Claims Tribunal erred in not awarding any compensation

towards pecuniary damages for the funeral expenses of the

deceased and non-pecuniary damages under the heads of loss

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

consortium.

(iv) The Claims Tribunal erred in awarding interest at the rate of

10% per annum from the date of the filing of the petition till

the realization of the award, whereas it should be at the rate of

12% per annum.

5. As regards the first contention of the appellants, Ms Aruna

Mehta, the learned counsel for the appellants contended that the

learned Tribunal ought to have taken the income of the deceased at

` 1,500/- per month. In this regard, Ms. Mehta referred to the

testimony PW-8 Smt. Ram Devi, widow of the deceased who testified

that her husband used to repair old sofa-sets and also manufacture

new ones on contract basis. She stated that he used to work in kothis

and had some permanent and some temporary customers; that he used

to earn ` 1,500/- to ` 1,600/- per month and was taking ` 500/- from

her for his personal expenses. Ms Mehta also referred to the

testimonies of PW-6 Shri Chiranji Lal and PW-7 Shri Bhup Singh.

PW-6 Shri Chiranji Lal, in his testimony, stated that prior to the death

of the deceased he had hired him on contract basis for repairing sofas

and ` 1,000/- was settled between them for the same. He further

stated that the deceased worked for him only for two days i.e. on

29.10.1988 and 30.10.1988 as he met with an accident on 31.10.1988.

PW7 - Shri Bhup Singh, in his testimony, stated that he was also

doing the work of repair of sofas and had worked with the deceased

many a times when they got work in bulk. He further stated that he

used to earn ` 1,500/- per month in the year 1988, and so the

deceased must have been earning ` 1,500 per month as well.

6. Ms Mehta, the learned counsel for the appellants, contended

that there was no reason for the learned Tribunal to disbelieve the

testimonies of the aforesaid witnesses. The following precedents

were cited by the counsel to support her contention that it was

difficult for persons employed in the unorganized sector to adduce

documentary evidence regarding their income:

(a) Delhi Transport Corporation Vs Deep Kanta and Others,

2003 ACJ 1369.

(b) Delhi Transport Corporation Vs T Radha and Others,

1993ACJ 276.

(c) Vidyawati and Others Vs Dharam Singh and Others, FAO

No-369/99 decided on 20.3.2007.

7. Ms. Mehta further contended that as per the ration card of the

deceased placed on record, the deceased was 37 years age. She

contended that the age of the deceased as mentioned in the post-

mortem report ought not to have been considered by the Tribunal to

be conclusive, more so, when the ration card of the deceased had been

placed on record. The learned counsel for the appellants relied upon

the case of Narsingh & Anr. Vs. Balkrishan & Ors., 1988 ACJ 288

to contend that the age which is mentioned in the post-mortem is only

guess work and there could be a difference of 6 to 7 years in the

assessment of the age of any person. The appropriate multiplier, in

the instant case, according to the learned counsel for the appellants,

would be the multiplier of 15.

8. As regards the income of the deceased, I find from the record

that no documentary proof whatsoever has been brought on record to

prove what the deceased was earning. It may also be noted that PW-6

Shri Chiranji Lal, in his cross examination categorically stated that he

did not know the income of the deceased. The testimony of PW-7

Shri Bhup Singh, relied upon by learned counsel for the appellants, is

also of no avail to the appellants, as he merely stated that the

deceased may be earning the same amount as he was earning being

engaged in the same work. This, to my mind, does not sufficiently

prove the income of the deceased.

9. However, in view of the aforesaid testimonies of PW6, PW7

and PW8 that the deceased was doing the work of sofa repair, it is

deemed just and proper to quantify the compensation payable to the

appellant on the basis of minimum wages for a skilled workman, for a

skilled workman alone, to my mind, can repair sofa-sets. Taking the

average of minimum wages for a skilled workman as on 16.3.1988,

which were in the sum of ` 749/-, and as on 1.5.1989 which were

` 1,000/-, (the accident having taken place on 31.10.1988), the

monthly salary of the deceased works out to be ` 875/- per month.

10. In view of the aforesaid, it is deemed expedient to re-compute

the compensation payable to the appellants. Assuming the income of

the deceased on the date of the accident to be ` 875/- per month, as

calculated hereinabove, the same has to be doubled and averaged to

neutralize the increase in price index and inflation rate and thus, the

monthly income of the deceased comes out to be ` 1,312.50/- per

month or say ` 15,750/- per annum. Deducting therefrom one-third

towards the personal and living expenses of the deceased the annual

loss of dependency of the appellants thus comes to ` 10,500/- per

annum.

11. Adverting next to the aspect of multiplier, it is evident from the

records that the age of the deceased has been mentioned as 37 years in

the ration card issued on 1-1-1988, which is exhibited as PW8/1. The

appropriate multiplier for the age group of persons between 36 years

to 40 years in consonance with the judgment of the Supreme Court in

Smt. SarlaVerma&Ors. vs. Delhi Transport Corporation &Anr.,

(2009) 6 SCC 121, is the multiplier of 15. The deceased being 37

years of age on the date of the accident, the appropriate multiplier in

the instant case is thereofore adjudged to be the multiplier of 15.

However, it may be mentioned that even if the deceased is assumed to

be 40 years of age on the date of the accident, the appropriate

multiplier applicable to the age of the deceased would still be the

multiplier of 15. The total loss of dependency of the appellants thus

comes out to ` 1,57,500/- (that is, ` 10,500/- x 15). In addition to the

said sum awarded for loss of dependency, the appellants are also held

entitled to receive pecuniary and non-pecuniary damages in the sum

of ` 5,000/- each towards the loss of love and affection, loss of

consortium, loss of estate and funeral expenses of the deceased, that

is, a sum of ` 20,000/- in all. The total compensation payable to the

appellants, thus, works out to be in the sum of ` 1,77,500/- in all

(Rupees one lakh seventy seven thousand and five hundred only).

12. Accordingly, the total compensation payable to the appellants

is enhanced from ` 60,000/- to ` 1,77,500/-. The enhanced

compensation shall carry interest at the rate of 7.5% per annum

payable from the date of petition till realization of the award amount.

13. The impugned award is modified accordingly. The enhanced

compensation alongwith interest thereon shall be paid to the

appellants by the respondent No.3 within a period of four weeks from

today by depositing the same with the Registrar General of this Court.

14. The appeal stands allowed to the aforesaid extent. The records

of the Claims Tribunal be sent back to the concerned Tribunal.

                                              REVA KHETRAPAL
                                                    (JUDGE)
September      , 2011
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