Delhi High Court
D.T.C. & Anr. vs Kesari Devi on 3 October, 2013
Author: Suresh Kait
$~R-31-C
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 3rd October, 2013
+ MAC.APP. No.657/2005
D.T.C. & ANR. ..... Appellants
Represented by: Mr. J.N.Aggarwal, Advocate.
Versus
KESARI DEVI ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is directed against the impugned award dated
28.04.2005, whereby the learned Tribunal has granted compensation for a
sum of Rs.2,55,000/- with interest at the rate of 9% per annum from the date
of filing of the petition till realization.
2. Learned counsel appearing on behalf of the appellant/Corporation has
argued that though negligence has not been proved, despite that the learned
Tribunal has directed the appellant/Corporation to pay the compensation.
3. He further submitted that RW1 Shammi Kapoor, Conductor of the
offending Bus (since driver of the said bus has died) has deposed that on
24.03.1998 he was posted as Conductor with DTC Bus No.DEP 8983
plying on route No.883. At about 11.30 AM, the said bus reached RBI
Colony; he saw that a cyclist collided with the front footboard of a truck.
Consequently, Raj Kishan, Appellant No.2/driver (since deceased) took the
injured to a nursing home. He further deposed that the accident took place
due to negligence of the cyclist and aforesaid appellant tried to help him.
4. Learned counsel for the appellant/Corporation has submitted that there
was no negligence on the part of the Appellant No.2/driver of the offending
vehicle but the police had deliberately filed the criminal case against the said
vehicle and the driver. Accordingly, the learned Tribunal has directed the
appellant/Corporation to pay the compensation amount.
5. Second ground argued by the learned counsel for the
appellant/Corporation is that the respondent/claimant has claimed the salary
of the deceased as Rs.2,000/- per month as he was employed as a Helper in
Chemical Factory. However, failed to prove any salary certificate to this
effect. Despite, the learned Tribunal has considered the salary of the
deceased as Rs.2,500/- per month for quantifying the compensation amount.
6. He also submitted, the settled law is that if the salary/income of the
deceased has not been proved, in that eventuality, the Tribunals and the
Courts have to take the minimum wages applicable on the date of the
incident. Since on 01.02.1998, as per the Minimum Wages Act, 1948, the
minimum wages for an unskilled person was Rs.1,937/- per month,
therefore, the learned Tribunal has failed to consider the monthly income of
the deceased as per the said Act.
7. So far as the issue of negligence is concerned, mother of the deceased
has examined Constable Umed Singh as PW2, who has placed on record
copies of the criminal case as Ex.PX1 to PX20, such as charge sheet filed
against Raj Kishan, Appellant No.2 (since deceased) under Sections
279/304-A IPC, site plan, superdarinama of offending bus bearing No.DEP-
8983, DD entry, bail bond, personal search memo, mechanical inspection
report, application for mechanical inspection, seizure memo of bicycle of
deceased, seizure memo of DTC Bus No.DEP 8983, death summary and
post-mortem report etc. The said PW has proved the FIR as Ex.PW2/7.
After completion of the investigation, driver/Raj Kishan/ Appellant no.2 has
been charged sheeted in a criminal case.
8. I note, except RW1 Shammi Kapoor, no one rebutted the deposition
of the respondent/claimant and the said RW1, being Conductor of the
offending bus, is an interested witness. Moreover, he has not brought any
material on record to rebut the stand taken by the claimant.
9. Therefore, on this issue, I do not find any substance in the submission
of learned counsel for the appellant/Corporation and the same is dismissed.
10. As the issue of salary is concerned, I find force in the submission of
learned counsel for the appellant/Corporation as, admittedly, the
claimant/respondent has neither proved the salary certificate nor examined
employer of the deceased before the learned Tribunal, therefore, in that
eventuality, the learned Tribunal should have considered the salary/income
of the deceased as per the Minimum Wages Act, 1948 applicable on the date
of the accident. As argued by the learned counsel for the
appellant/Corporation, as on 01.02.1998, minimum wages for an unskilled
person was Rs.1,937/- per month and the accident took place on 24.03.1998.
11. Thus, on the basis of the minimum wages prevalent on the date of the
accident, i.e., 24.03.1998, I consider the income of the deceased as
Rs.1,937/- per month.
12. Learned counsel for the appellant/Corporation has further argued that
since at the time of the accident, the age of the deceased was 25 years and he
was a bachelor and that only the respondent/claimant, i.e., his mother was
dependent upon him, therefore, the learned Tribunal ought to have deducted
one-half of the income of the deceased towards personal expenses.
Whereas, the learned Tribunal has erred in deducting one-third of the
income towards the same.
13. I find force in the submission of the learned counsel for the
appellant/Corporation.
14. Therefore, keeping in mind the settled position of law in the case of
Sarla Verma Vs. DTC and Ors. 2009 (6) SCC 121, I deduct one-half of the
income of the deceased towards his personal expenses.
15. Resultantly, the compensation amount would be as under:-
Income of the deceased = Rs.1,937/- p.m,
Future prospects 50% = Rs. 968.50
Personal expenses ½ = Rs.1,452.75
Loss of dependency = Rs.1,39,464/-
(1452.75 x 12 x 8)
Compensation on account of = Rs.15,000/-
Conventional Ceremonies __________
Total = Rs.1,54,464/-
Thus, the reduced compensation amount is Rs.1,00,536/- (Rs.2,55,000
- Rs.1,54,464).
16. Vide order dated 05.08.2005, this Court stayed the execution of the
impugned award subject to appellant's/Corporation's depositing the entire
award amount. On deposit, 50% of the amount was released in favour of the
respondent/claimant.
17. The Registry of this Court is directed to release the balance amount of
compensation, if any, along with upto date interest accrued thereon in favour
of the respondent/claimant on taking necessary steps.
18. Since the compensation amount is reduced as noted above, therefore,
the Registry of this Court is directed to release the excess compensation
amount with interest, if any, deposited by the appellant/Corporation on
taking necessary steps by the Corporation.
19. Statutory amount of Rs.25,000/- shall also be released in favour of the
appellant/Corporation.
20. In view of the above, this appeal is partly allowed and stands disposed
of.
SURESH KAIT, J.
OCTOBER 03, 2013
Sb/RS
