Hemlata Nambiar And Ors vs Kishan Kumar Alias Kishan Lal And ...
2014 Latest Caselaw 4331 Del

$~R-5.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Date of Decision: 10.09.2014
+     MAC.APP. 735/2005
      HEMLATA NAMBIAR AND ORS                             ..... Appellants
                          Through      Mr. S.C. Rana, Advocate
               versus
      KISHAN KUMAR alias KISHAN LAL AND ORS ..... Respondents
                      Through Mr. S.L. Gupta and Mr. Ram Ashray,
                              Advocates for R3

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the claimants/appellants on account of the death of Shri Anil Kumar Nambiar in a motor accident. The present appeal is filed seeking enhancement of the Awarded compensation as given in the Award dated 05.04.2005.

2. The claim petition was filed under section 166 and 140 of the Motor Vehicles Act, 1988.

3. The brief facts are that the deceased on 24.04.1995 after closing the printing press where he was working was travelling on his scooter towards his residence at the R.K. Puram side. He was followed in the car by his brother. At outer ring road while taking a turn to the outer ring road leading to Vasant Vihar Police Station, a vehicle rashly and negligently driven by respondent No.1 hit the vehicle of the deceased. The scooter was dragged by the offending vehicle upto 15 yards by respondent No.1 who ran away after the accident.

4. Based on the evidence on record the Tribunal awarded a total

compensation of Rs.4,34,000/-. The Tribunal assessed the income of the deceased at Rs.2,000/- per month based on minimum wages. Future prospects of 50% were added. 1/3rd was deducted on account of personal expenses. Total loss of dependency was hence assessed as Rs.3,84,000/- using the multiplier of 16. A sum of Rs.40,000/- was awarded on account of loss of love and affection and consortium. Rs.10,000/- was awarded on account of funeral expenses. Hence, the total compensation came to Rs.4,34,000/-.

5. Learned counsel appearing for the appellant has strenuously urged that the Tribunal erred in deducting the income of the deceased based on the minimum wages applicable. He submits that the deceased was the Manager of Padma Printing Press of which his father A.Shankaran Nambiar was the proprietor. He submits that the deceased was getting a salary of Rs.6,000/- per month and HRA of Rs.1,000/-. The salary certificate Ex.PW3/1 had been placed on record. He further submits that the proprietor, namely, the father of the deceased Shri A.Shankar Nambiar was himself of 72 years age and hence the question of having being able to carry out the business does not arise and the entire business of running the press was being carried on by the deceased. Hence, he submits that the Tribunal erred in discarding the salary certificate in the light of the facts and circumstances of this case and has awarded a very unfair compensation to the claimants. He further submits that pursuant to liberty granted by this Court on 5.9.2009 the Income Tax Returns of the Padma Printing Press have been placed on record.

6. He also relies upon judgment of the Supreme Court in the case of Minu Rout and Another vs. Satya Pradyumna Mohapatra and Others, (2013) 10 SCC 695.

7. The Tribunal took the view that the father may not be maintaining any books of account. The salary certificate has been issued by the father in favour of his son and the father is also not an income tax payee. The educational qualifications have also not been proved on record. In the absence of satisfactory documentary evidence of the income of the deceased, the Tribunal took the minimum wages applicable in Delhi in the year 1995.

8. To deal with the contentions of learned counsel for the appellant I may first see the evidence on record. PW-2 Hemlata wife of the deceased has given her evidence. She has confirmed that her husband was an employee in Padma Printing Press and was earning Rs.6,000/- per month as salary. She has marked the salary certificate as Mark-A. She has in her cross-examination said that she is not aware as to whether an appointment letter was issued to him. She has also said that her husband has been working at the press for 16 years prior to his death. She has also said that he was higher secondary pass.

9. The father Shri A.Shankaran Nambiar PW-3 has exhibited the salary certificate as Ex.PW3/1. He has said that at the time of the death of his son he himself was aged 72 years and that the deceased son was entirely looking after the affairs of the firm. In his cross-examination he has said that the printing press was established in 1971. In 1994 the turn-over was Rs.35,000/- per month. He further says that neither him nor his firm or the deceased son were assessable to income tax. Net profit of the firm was stated to be Rs.15,000/- per month.

10. We may also have a look at the cross-examination of PW-3 which reads as follows:-

"I established my Printing Press in the year 1971. The turnover of our firm in year 1994 was about Rs.35,000/- per month. I am not income tax assessee. My firm is also not

assessed to income tax. My son was also not income tax assessee. The net profit of the firm was about Rs.15,000/- and I used to pay Rs.6,000/- to my son and all earning of myself and my son were used to be spent to meet the household expenses. My son was maintaining accounts books of firm. But I do not know where the same was lying. I had taken permission from the Govt. to run the printing press but I have not filed the same. I shall file it later on. It is wrong to say that I am deposing falsely."

11. PW 4 Shri Sunil Nambiar, the brother of the deceased has pointed out that he was working with M/s. Thomas Cook and he has left his job after the death of the brother and is assisting his father in running the printing press.

12. Exhibit PW3/1 issued by Padma Printing Press reads as follows:-

"To whom it may concern This is to certify that I was paying Rs.6000/- to Late Anil Kumar Nambiar as salary and Rs.1000/- as house rent as he was staying separate."

13. The appellants have now before this Court filed copies of Form 4-A said to be the Income Tax Returns of Padma Press for the year 1993-1994 and 1994-1995. The income for 1993-1994 is stated to be Rs.37,000/- of which a tax of Rs.1400 is said to have been paid. The income for 1994-1995 is said to be 42,000/- for which also a tax of Rs.1400/- is said to have been paid. However, these income tax records now filed do not really help the appellant. The income for the relevant years is shown as Rs.37,000/- per year and Rs.42,000- per year. These are net income. In the absence of the balance sheet it is not possible to know the turn-over of the press or the income of the deceased.

14. In my view notice can be taken of a few facts which the Tribunal has ignored. The father PW-3 in his testimony has clearly brought out that the printing press is a very old press situated at Munirka Market which can be

termed to be a reasonably prime location. On the death of the deceased the firm was more than 20-22 years old. He has in his evidence exhibited the salary certificate. In the cross-examination by the counsel for the respondent No.3 Insurance company nothing has come on record to doubt the testimony of PW-3.

15. PW-2 in the cross-examination has confirmed that her husband was working in the press for 16 years and that he had passed his higher secondary.

16. I can also take notice of the fact that the deceased has a family which is residing at Munirka DDA flats in South Delhi. The deceased was running his own scooter. This kind of expenditure would not have been possible had the income of the deceased been Rs.2,000/- per month.

17. The Supreme Court in the case of Minu Rout and Another vs. Satya Pradyumna Mohapatra and Others,(supra) in paragraph 20 held as follows:-

"20. The Tribunal ought to have taken the salary of the deceased driver at Rs. 6,000/- by taking judicial notice of the fact that the post of a driver is a skilled job. Though the claim of the Appellants is Rs. 5000/- as monthly salary of the deceased for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased should have been taken at Rs. 6000/- per month by the Tribunal for awarding just and reasonable compensation, which is the statutory duty of the Tribunal and the Appellate Court."

18. Keeping in mind the above facts and circumstances of the case and the evidence on record, in my view it would be appropriate not to peg the income of the deceased at minimum wages. I would hence assess the income of the deceased as Rs.4,000/- per month.

19. Taking into account the income of the deceased as Rs.4,000/- per

month the loss of dependency would be hence as follows:- [(4,000 + 50% - 1/3rd )x12 x 16] = 7,68,000 Total compensation comes to Rs.8,18,000/-.

20. As per the Award the respondent No.3 Insurance Company had been directed to deposit the award amount. The respondent No.3 may deposit the enhanced award amount with accumulated interest @ 7.5% per annum from the date of filing of the petition till deposit in Court. On receipt of the enhanced award amount, the same may be released to the appellants No.1,2 and 4 with accumulated interest in the ratio of 50%, 25% and 25% respectively. Appellant No.3 is said to have died.

21. Appeal stands disposed of.

JAYANT NATH, J SEPTEMBER 10, 2014 'N'