Delhi High Court
M D, Panbas vs Reshma & Ors. on 2 April, 2014
Author: Suresh Kait
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 2nd April, 2014
+ MAC.APP. 782/2013
M D, PANBAS ..... Appellant
Represented by: Mr.Kamal Sharma, Advocate.
Versus
RESHMA & ORS. ..... Respondents
Represented by: Mr.D.K.Sharma, Ms.Vandna
Sharma and Mr.Ikram,
Advocates for Respondent Nos.
1 to 6.
Mr. Vikram Singh and
Mr.Vinod Kumar, Advocates
for Respondent No.7.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is preferred against the impugned award dated
29.04.2013, whereby the learned Tribunal has granted compensation for an
amount of Rs.12,23,296/- with interest at the rate of 9% per annum from the
date of filing of DAR petition till realization of the amount.
2. Mr.Kamal Sharma, learned counsel appearing on behalf of appellant
submits that the negligence on the part of the respondent No.7, i.e., driver of
the offending vehicle has not been established as there was no eye witness to
the accident. However, while awarding compensation, the learned Tribunal
has relied upon the testimony of PW2, Ravinder Singh, who is a planted
witness. He submits that neither in examination-in-chief nor during cross-
examination, the said PW2 stated nothing with regard to the negligence on
the part of the respondent No.3.
3. He further submits that as per the copy of the ration card placed on
record, the learned Tribunal has considered the age of the deceased as 40
years at the time of the accident. He submits that since the original ration
card was not produced before the learned Tribunal, therefore, copy of the
same could not be considered as an authentic piece of evidence as per the
Indian Evidence Act, 1872. Thus, age of the deceased has not been
established and in the absence thereof, there was every possibility of
deceased having more than 40 years of age on the date of the accident.
4. On negligence, the learned Tribunal had framed the following issue
on 24.02.2012:-
"1. Whether Sh.Inder Prakash son of late Sh.Raghuvir Singh
died due to road accident on 19.7.2011 at about 1.30 PM
at GTK Road, Shani Mandir, near Yadu Green Farm
House, Alipur within the jurisdiction of PS Alipur, Delhi
involving offending vehicle No.PB 05R 8853?"
5. On perusal of the trial court record, it is established that PW2 in his
evidence by way of affidavit stated that on 19.07.2012, he along with one
Sh. Sandeep was going by Mahendra Champion bearing No.DL 1L H 4901
from Mandoli to Narela for delivery of some goods as he was doing labour
work. When the aforesaid vehicle reached in front of GTK Road, Shani
Mandir near Yadu Green Farm House, Alipur, Delhi, suddenly the offending
vehicle, i.e., Bus bearing No.PB 05R 8853, which was coming from
backside without blowing horn, being driven by its driver on a very high
speed, rash and negligent manner, hit the Mahendra Champion, due to which
driver, Narender Singh Tomar (brother of PW2) died on the spot and
deceased Inder Prakash, sustained grievous injuries.
6. Thereafter, the deceased Inder Prakash was taken to BJRM Hospital
and later on 23.07.2011, he was shifted to Sunder Lal Jain Hospital, Ashok
Vihar, Delhi, however, expired on 19.10.2011.
7. Moreover, an FIR No.244/11 under Sections 279/337/304-A IPC was
lodged at P.S. Alipur, against the respondent No.7.
8. In view of the evidence on record, there is no an iota to discard the
testimony of PW-2.
9. As far as the issue of age of the deceased is concerned, the
respondents/claimants have placed on record the copy of the ration card. As
per which, age of the deceased has been established as 40 years. However,
the appellant neither led any evidence nor examined any witness contrary
thereto.
10. In view the facts noted above and evidence on record, I do not find
any merit in the instant appeal. The same is accordingly dismissed.
11. At this stage, learned counsel appearing on behalf of the
respondents/claimants submits that the Appellate Court has to see whether
the compensation granted by the learned Tribunal is just and fair. If not, this
Court has power to enhance the same.
12. He further submits that in the present case, the deceased died at the
age of 40 years. Since the respondents/claimants could not prove the
employment/ earning of the deceased, therefore, the learned Tribunal has
assessed his monthly income as Rs.6,422/- applicable to an unskilled person
at the prevalent time as per the Minimum Wages Act, 1948, but not added
any amount in the actual income of the deceased towards future prospects.
13. To strengthen his arguments, he has relied upon the case of Rajesh
and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, wherein the Full
Bench of the Apex Court held as under:-
"11. Since, the Court in Santosh Devi's case (supra)
actually intended to follow the principle in the case of
salaried persons as laid in Sarla Verma's case (supra)
and to make it applicable also to the self-employed and
persons on fixed wages, it is clarified that the increase
in the case of those groups is not 30% always; it will
also have a reference to the age. In other words, in the
case of self-employed or persons with fixed wages, in
case, the deceased victim was below 40 years, there
must be an addition of 50% to the actual income of the
deceased while computing future prospects. Needless to
say that the actual income should be income after
paying the tax, if any. Addition should be 30% in case
the deceased was in the age group of 40 to 50 years."
12. In Sarla Verma's case (supra), it has been stated
that in the case of those above 50 years, there shall be
no addition. Having regard to the fact that in the case of
those self-employed or on fixed wages, where there is
normally no age of superannuation, we are of the view
that it will only be just and equitable to provide an
addition of 15% in the case where the victim is between
the age group of 50 to 60 years so as to make the
compensation just, equitable, fair and reasonable. There
shall normally be no addition thereafter.
14. Learned counsel further submits that the deceased died at the young
age of 40 years, left behind six dependants, including young widow, two
sons and three daughters. Despite that the learned Tribunal has granted
Rs.10,000/- each on account of loss of consortium and funeral charges,
which is on a lower side.
15. Mr. Kamal Sharma, learned counsel appearing on behalf of the
appellant submits that since the respondents/claimants have failed to prove
the permanent employment of the deceased, therefore, keeping in view the
dictum of Sarla Verma & Ors. Vs. DTC & Anr., (2009) 6 SCC121, which
has been further affirmed by the Full Bench of the Apex Court in Reshma
Kumari & Ors. Vs. Madan Mohan & Anr. delivered in Civil Appeal No.
4646 of 2009 on 02.04.2013, the learned Tribunal has rightly not added any
amount in his income towards future prospects.
16. On the issue of non-pecuniary damages, Mr.Sharma, learned counsel
for the appellant submits that keeping in view the facts and circumstances of
the case, the learned Tribunal has granted substantial amount towards the
same.
17. I have heard learned counsel for the parties and have perused the
record.
18. As regards the issue of future prospects is concerned, the same has
been dealt with by this Court in the case bearing MAC. APP. No.846/2011
titled as ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh &
Ors., decided on 30.09.2013, while relying upon the dictum of the Apex
Court in Rajesh & Ors. (supra).
19. Therefore, keeping in view the settled position of law and the age of
the deceased, i.e., 40 years at the time of the accident, I add 50% in the
actual income of the deceased towards future prospects.
20. Admittedly, the deceased died at the young age of 40 years. Due to
untimely tragic death of the deceased in the accident, the respondent
No.1/wife lost the association of her husband and all pleasures of life, and
respondent Nos. 2 to 5 have lost the love, affection, care and guidance of
their father causing irreparable loss to them.
21. Therefore, keeping into mind all the facts and circumstances of the
case and following the dictum of Rajesh & Ors. (supra), I enhance the
compensation on account of loss of consortium to Rs.1,00,000/- and for
funeral charges to Rs.25,000/-.
22. Accordingly, the compensation amount comes as under:
Sl. Heads of Compensation Compensation
No. Compensation granted by ld. granted by this
Tribunal Court
Pecuniary Damages:
1. Loss of dependency Rs.8,66,870/- Rs.13,00,455/-
2. Funeral charges Rs. 10,000/- Rs. 25,000/-
3. Loss of estate Rs. 10,000/- Rs. 10,000/-
4. Loss of consortium Rs. 10,000/- Rs.1,00,000/-
5. Medical expenses Rs.2,01,326/- Rs.2,01,326/-
Non Pecuniary Damages:
6. Loss of love, company and
Rs.1,00,000/- Rs.1,00,000/-
affection etc.
7. Loss of gratuitous services Rs. 25,000/- Rs. 25,000/-
TOTAL Rs.12,23,296/- Rs.17,61,781/-
23. Resultantly, the total compensation is assessed as Rs.17,61,781/-.
24. Accordingly, an amount of Rs.5,38,485/- is enhanced (Rs.17,61,781/-
- Rs.12,23,296/-).
25. The enhanced compensation shall carry interest at the rate of 9% per
annum from the date of filing of the DAR petition till its realization.
26. Accordingly, the appellant is directed to deposit the enhanced
compensation with up-to-date interest accrued thereon with the Registrar
General of this Court within a period of five weeks from today, failing
which, respondents/claimants shall be entitled for penal interest at the rate of
12% per annum on account of delayed payment.
27. On deposit, the Registrar General is directed to release the amount in
favour of the respondents/claimants in terms of the award dated 29.04.2013
passed by the learned Tribunal.
28. In view of the above, the appeal is disposed of.
SURESH KAIT, J.
APRIL 02, 2014
Sb/jg
