Delhi High Court
Poonam Devi & Ors vs Birju Yadav @ Bachhu & Ors on 20 April, 2012
Author: G.P. Mittal
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th April, 2012
+ MAC APP No.616/2009
POONAM DEVI & ORS.
..... Appellants
Through: Mr. R.K. Bachchan, Advocate
Versus
BIRJU YADAV @ BACHHU & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Advocate for the
Respondent No.3 Insurance
Company
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `5,58,000/-
awarded for the death of Virender Prasad Yadav @ Virender
Prasad Rai who died in an accident which occurred on
07.09.2008.
2. In the absence of any Cross-Appeal or Cross-Objections, the
finding of negligence has become final between the parties.
3. The Appellants who filed the Claim Petition were the
deceased's widow, a minor child, mother, father aged 62 years
and an unmarried sister.
4. It was claimed during inquiry before the Claims Tribunal that
the deceased was a TSR driver and was earning `9,000/- per
month. The evidence produced with regard to the deceased's
profession was not disputed. In fact, at the time of the
accident, the deceased was driving a TSR and he got down to
help the victims of a motor accident which had already taken
place. The offending truck/container bearing registration
No.HR-38J-8675 driven by the First Respondent in a rash and
negligent manner mowed down a number of persons including
the deceased. The Claims Tribunal in the absence of any
cogent evidence with regard to the deceased's income took the
help of minimum wages as on the date of the accident fixed
under the Minimum Wages Act, added 50% towards future
prospects to compute the loss of dependency as `5,38,000/-.
After adding notional sums towards loss of consortium, funeral
expenses and loss to estate, an overall compensation of
`5,58,000/- was awarded.
5. The contentions raised on behalf of the Appellants are:
i) The Claims Tribunal erred in taking the deceased's
income under the Minimum Wages Act. The
deceased's income should have been considered as
`9,000/- per month as stated by PW1 Poonam Devi
in her affidavit Ex.PW1/A and PW2 Prabhu Prasad
Yadav in his affidavit Ex.PW2/A.
ii) The deceased's father was aged 62 years and the
deceased had an unmarried younger sister, the
number of dependents were, therefore, five and
deduction of 1/4th ought to have been made instead of
1/3rd in view of the judgment in Sarla Verma & Ors.
v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121.
iii) No compensation was awarded towards the loss of
love and affection and the compensation awarded
towards funeral expenses and loss to estate was very
low.
6. As stated earlier, PW1 Poonam Devi's and PW2 Prabhu Prasad
Yadav's testimony that the deceased was an Auto/TSR driver
was not challenged. No suggestion was given to PW2 in the
cross-examination that the deceased was not working as a TSR
driver. This accident took place on 07.09.2008. Minimum
wages of a skilled worker under the Minimum Wages Act on
that date of the accident was `4107/-. The Claims Tribunal
ought to have elicited some evidence to find out the earnings of
a TSR driver at the time when this accident occurred. I would,
therefore, make a guess work and assume the salary of a TSR
driver in September, 2008 to be about at least `200/- per day.
Although, the TSR drivers work all seven days in a week.
Even if the number of working days in a month is taken as 25,
the minimum income of a TSR driver would be `5,000/- per
month.
7. As far as the deduction towards personal and living expenses is
concerned, in Sarla Verma (supra), it was held that normally
the father would not be considered as a dependent. In this case,
it was not disputed that Vasudev Rai, the deceased's father was
aged 62 years on the date of the accident. The deceased had an
unmarried younger sister. Considering the age of the
deceased's father and the fact that the deceased belonged to a
lower strata of the society, I would consider the deceased's
father and his unmarried sister to be financially dependent on
the deceased. I agree with the learned counsel for the
Appellants that deduction of 1/4th of the deceased's income
should have been made towards his personal and living
expenses instead of 1/3rd. The loss of dependency thus comes
to `7,20,000/-(`5,000/- X 3/4 X 12 X 16).
8. Normally, a sum of `25,000/- is awarded for loss of love and
affection irrespective of the financial status of the deceased or
the Claimants. Therefore, I would make a provision for
`25,000/- towards loss of love and affection. `10,000/- each is
awarded towards loss to consortium, funeral expenses and loss
to estate.
9. The overall compensation is enhanced from `5,58,000/- to
`7,75,000/-.
10. The enhanced compensation of `2,17,000/- shall carry interest
@ 7.5%. Out of the enhanced compensation, `1,00,000/- shall
be payable to Smt. Poonam (the deceased's widow), `50,000/-
to baby Priyank (the deceased's minor daughter), `30,000/- to
Vasudev Rai(the deceased's father) and `37,000/- to Anita
Kumari(the deceased's mother) along with the proportionate
interest.
11. The enhanced amount along with interest shall be deposited in
the UCO Bank Account of the above said Appellants within six
weeks. 60% of the enhanced amount awarded to the Appellant
No.1 shall be held in Fixed Deposit for a period of two years,
four years and six years. Rest of the amount shall be released
immediately on deposit. The amount payable to Appellant
No.2 shall be held in Fixed Deposit till she attains the age of 21
years. 50% of the enhanced amount awarded to Appellants
No.3 and 4 shall be held in Fixed Deposit for a period of two
years. Rest of the amount shall be released forthwith. The
Appellants would be entitled to draw quarterly interest.
12. The Appeal is allowed in above terms.
13. The statutory amount shall be refunded to the Appellants.
(G.P. MITTAL)
JUDGE
APRIL 20, 2012
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