Delhi High Court
Satyavir Singh & Ors vs Om Prakash Singh & Ors. on 24 February, 2016
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date ofDecision: 24"" February, 2016
MAC.APP. 226/2011
SATYAVIR SINGH & ORS
Appellants
Through: Ms Arati Mahajan Shedha with Mr.
Manoj Kumar, Advs.
versus
OM PRAKASH SINGH &ORS ™:.^,^^
&ORS^^ Respondents
/^Tlvou^^i 'tUr. R0ulR^^Verma, Adv.
HON'BLE MFg^STICE R-ICCaUbA ^ \
JUDGMENT *^1
R.K.GAUBA, J (ORAL^: I
1. Gajender Kumar @Karan, aged 21 years, died as aresult of injuries
suffered in a motor vehicular accident that occuired at about 6.00 pm on
08.10.2007 involving Tata Tempo bearing No.DL^ltE-4958 (offending
vehicle) which was concededly insured against third party risk with the third
respondent herein. On the claim _£etit^;presented on 19.05.2008 under
Sections 166 and 140 of Motor Vehicle Act, 1988 (MV Act) by his parents
(the appellant herein), the motor accident claims tribunal (Tribunal)
registered it as suit No. 193/2008 and held inquiry. The driver and owner
respectively of the offending vehicle were impleaded on the allegations that
the accident had occurred on account of rash or negligent driving of the
offending vehicle by its driver resulting in collision against Motorcycle
bearing no.DL-3S-BB-2989 driven by the deceased.
MACAPP. No. 226/2011
Page I of 10
2. By judgment dated 17.03.2010, the tribunal awarded compensation in
the sum of ?3,70,848/- in favour of the claimants with interest @ 7.5% per
annum from the date of filing of the petition till realization. The
compensation thus awarded included ?2,95,848/- towards loss of
dependency. It is this part of the compensation along with the rate of
interest, which are the bone of contention in the appeal at hand.
3. Before the tribunal, the claimants had pleaded that he was a bachelor
earning ?11,750/- per month approximately. His father (first appellant
herein) examined himself (as PW-1) on the basis of his own affidavit
(Ex.PW-l/A). In the said affidavit, he stated that the deceased was working
as field boy with Mahavir Leasing and Finance P. Ltd. 34, pevli, Khanpur,
New Delhi, getting a salary of fl 1,750/- per month. The salaiy certificate
presented with the said affidavit (Ex.PW-l/A) is shown to be;Ex.PW-l/60.
Noticeably, the document Ex.PW-1/60 had been prepared on tie letter head
of company named as "Above All Chit Fund Pvt. Ltd. 34^ Devli Road,
Khanpur, New Delhi-62" purporting to have been signed by its authorized
signatory. It is also pertinent to note that the salary certificate does not bear
the date on which it was issued. The document does not jell with the facts
affirmed in the affidavit Ex. PW-1/I wherein the name of the employer
company was described as "Mahavir Leasing and Finance P. Ltd. 34, Devli,
Khanpur, New Delhi".
4. The tribunal observed in the impugned judgment that no sufficient
income proof had been filed. Undoubtedly, this was not a correct approach
for appreciating the evidence as the document Ex.PW-1/60 referred to above
and the declaration made in the affidavit Ex. PW-l/A required mention,
scrutiny and proper conclusions to be reached.
MAC APp. No. 226/2011
5. Be that as it may, the tribunal adopted ^3,516/- per month as notional
income of the deceased on the basis of minimum wages for unskilled
labourer on the date of accident (08.10.2007). It may be added here that
though it was claimed by the first appellant in his affidavit Ex.PW-l/A that
the deceased was pursuing a computer course, no formal proof of such
computer course was submitted.
6. The tribunal, however, seems to have failed to notice that amongst the
documents submitted with the affidavit Ex. PW-l/A, the first appellant had
also placed on record copy ofthe i|i|tri(|ulat|Qn certificate (PW-1/34) of the
deceased and, thus, Jhere .was an e.i3;pr in adopting approp^^^^ rate of
mmimum wages. / - > 'r ' . \
7. The tribuml referred to the judgment of a learned sigg% judge of this
Court in National Insurance Company Ltd. v. Kailash Devi II (2008) ACC
77 and the decision of the Supreme Court in Sarla Verma & Qrs. V5. Delhi
.1
Transport Corporation & Anr., (2009) 6 SCC 121, to factor in the prospects
of increase in future income. Having adopted the minimum wages of
unskilled worker at ^3,516/- as the notional incoi^e^ it proceeded to
calculate the average income by assuming it, to be ?3,522/- per month, on the
basis of multiplier method (?2,348/-x2+2,318/- divided by two). There is
some confusion in the discussion to this effect in (para 10 of) the impugned
judgment as it is nowhere clarified as to from where the said figure of
'2348' had been picked up. At the same time, it is clear from the discussion
in the said paragraph that the endeavour of the tribunal was to calculate the
notional income on the basis of prospects of increase of income in future.
8. In the appeal, the grievance of the claimants essentially has been that
the evidence of PW-1 about the income should have been accepted.
MAC APP. No. 226/2011
particularly as it was supported by salary certificate (PW-1/60). It is
submitted that when questions arose as to whether the said document could
be relied upon, the appellants have adduced proper proofby having Satish
Kumar son of Mahavir, the person under whose purported signature the said
document (Ex.PWl/60) was issued, summoned and examined, he affirming
that the salary certificate had been issued by M/s Above All Chit Fund Pvt.
Ltd. 34, Devli Road, Khanpur, New Delhi. Whilst commencing her
arguments, learned counsel for the appellant submitted that she had
personally verified from the witness Satish Kumar, a practicing Advocate,
and only thereafter had got him summoned to prove the facts relating to the
above-mentioned employment of Gajender Kumar.
10. A perusal of the deposition of Satish Kumar and the salary certificate
Ex.PW-1/60, which was affirmed to have been issued by him under his own
signature, when seen against the declaration made by appellant (PW-1) gives
rise to serious doubts above the veracity of the evidence and the claim made
before the tribunal in relation to the employment of Gajender Kumar around
the time of his death; The certificate issued by Satish Kumar claiming to be
director of M/s Above All Chit Fund Pvt. Ltd. is not supported by any
material or record maintained by the said company. When questioned inthis
regard, Satish Kumar took cover under the plea that the company had since
been wound up and it's records were no longer available. He claimed that it
was a private limited company duly registered, but he would not give any
document showing registration of the said company with the Registrar of
Companies. He would not also give any information as to when or by which
order the company had been wound up. He would not produce any record,
including about his own authorization, to prove the salary certificate Ex.PW-
MACAPP. No. 226/2011
1/60 which he claims had been issued by him as the 'authorized signatory'
for and on behalf of the company. Since the salary certificate Ex.PW-1/60
does not bear any date and since the date of the so-called winding up of the
company is not even disclosed, it cannot even be said as to whether the
company had been wound up before the certificate was issued or the
certificate was issued while the company was still operational.
11. Curiously, Satish Kumar also produced in the course of his
deposition, apparently at the instance of the appellant, twelve counter-foils
showing certain deposits having been made in Punjab National Bank, at 7
Bikajikama place. New Delhi. The said counter-foils showing the name of
the purported depositor as Gajender Kumar pertain to the period June to
September 2007 and are pressed in aid to show that Gajender Kumar was
actually engaged as a 'field boy' with the above said company. It is,
however, not explained by Satish Kumar as to how these counter-foils have
continued to be in his control and after tfie; company had been wound up,
particularly in the teeth of his position that lie is unable tp ppduce record of
the company for suclj reasons. Noticeably, there'-l^ fio evidence adduced
even to show connection oC|)ie-^bnipfe/ wryi t^^ in which the said
deposits were made.
12. In the above facts and circumstances, the evidence of Satish Kumar
presented during hearing of the appeal, is found to be highly suspect and not
worthy of belief, particularly as the facts affirmed by the first appellant
(PWl) had sought to show that the deceased was working in a company
known as Mahavir Leasing and Finance P. Ltd., the connection between the
said company and the company referred to by the witness Satish Kumar not
having been explained.
13. For the foregoing reasons, the claim about income of the deceased at
?11,750/- per month from Mahavir Leasing and Finance P. Ltd. has gone
unsubstantiated. The approach ofthe tribunal, against the above backdrop, to
assess the income of the deceased on basis of minimum wages, thus, cannot
be faulted except that, as noted above, instead of minimum wages for
unskilled workers, the benefit of minimum wages for of matriculates should
have been the correct measure, which at that time was ?3,964/-, per month.
The loss of dependency needs to be recalculated on such basis.
14. The appellant relied, upon & Ors. v. Rajbir Singh & Ors.,
(2013) 9 see 54 and the decision in The New India Insurance Company
Ltd. vs Afsana Khatoon MAC APP. 585/2013 decided on 26.05.2015,
rendered by a learned single judge ofthis Court following the said view, to
argue that the prospects of future increase should be factored in death cases.
15. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Am., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled
that the element offuture prospects ofincrease in income will not be granted
in cases where the deceased was "self employed" or was working on a
"fixed salary". Though this view was affirmed by a bench ofthree Hon'ble
Judges in Reshma Kumari &Ors. Vs. Madan Mohan &Anr., {20U) 9 SCC
65, on account ofdivergence ofviews, as arising from the ruling in Rajesh
& Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a
larger bench, inter-alia, by order dated 02.07.2014 in National Insurance
Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
16. Against the above backdrop, by judgment dated 22.01.2016 passed in
MAC Appeal No. 956/2012 {Sunil Kumar v. Pyar Mofid.), this Court has
found it proper to follow the view taken earlier by alearned single judge in
MAC APP. No. 226/2011
MAC Appeal No. 189/2014 {HDFC Ergo General Insurance Co. Ltd. v.
Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decision
in Reshma Kumari (Supra) as the binding precedent, till such time the law
on the subject of future prospects for those who are "self-employed" or
engaged in gainful employment at a "fixed salary" is clarified by a larger
bench of the Supreme Court. This applies to the matter at hand because the
claimants here have not led any evidence showing that the income was
subject to any periodic increase.
17. For the above reasons, the calculation of the loss of dependency has to
be on the basis of a minimum wages of Rs.3,964/- per month only.
18. Another submission of learned counsel for the, appellant is that the
tribunal failed to take note of the fact that the father i.e. the first appellant,
has been rendered incapable of supporting himself since he Kas undergone
I
some surgical procedure. It is urged that, in such circumstances, the
personal and living expenses should have been deducted to |he extent one
fourth rather than one half; .r\> /
19. In his affidavit (Ex.PW-l/A), the first appellant had made no claim to
the above effect. When examined in the court, he did produce some
documents relating to problem in the backbone. But then that by itself does
not mean that he has to be treated as a person rendered absolutely unable to
work for gain or support himself Even otherwise, in view of the dictum in
Sarla Verma & Ors. V5. Delhi Transport Corporation & Anr., (2009) 6 SCC
121, in a claim arising out of death of a bachelor, deduction to the extent of
fifty percent (50%) on account of personal and living expenses must be
made.
20. Thus, the loss of dependency is worked out at (3,964/- divided by 2)
Rs.1,982/- per month. The tribunal adopted the multiplier of 14, on the basis
of age of the mother (45 years), and rightly so. Therefore, the total loss of
dependency is calculated as (1,982 x 12 x 14) Rs.3,32,976/-.
21. Though, it has not been argued, it is noted that the tribunal awarded
only Rs.50,000/- towards loss of love and affection and did not make any
award on account of loss to estate. In Rajesh & Ors. v. Rajbir Singh & Ors.
(supra), the Supreme Court had awarded Rs. 1,00,000/- towards loss of love
& affection. In Shashikala &'drs. Vs. Gangalakshamma & Ors. (2015) 9
see 150 while adopting the same approach. Supreme Court added
Rs.25,000/- towards loss to estate. In these circumstances, in addition to
Rs.25,000/- already awarded on account of funeral charges, the non-
pecuniary damages of Rs. 1,00,000/- towards the loss of love & affection and
Rs.25,000/- for loss to estate are added. Thus, the total compensation
awardable in the case is calculated as (Rs.3,32,976 + ^s. 1,50,000/-)
Rs.4,82,976/- rounded offto Rs.4,83,000/-. J
22. There is substance in the grievance as4toJ;^the'rate of interest.
Following the consistent view of the Supreme Court on the subject in a
series of such cases, the rate of interest is enhanced to nine percent (9%) per
annum from the date of filing of the petition till realization. [Kaiishnuma
Begum V5 New India Assurance Co. Ltd. (2001) 2 SCC 9; Supe Dei V5
National Insurance Co. Ltd. (2009) 4 SCC 513; Municipal Corporation of
Delhi, Delhi V5 Association of Victims of Uphaar Tragedy and Ors. (2011)
14 SCC 481; Basappa vs T. Ramesh (2014) 10 SCC 789; Syed Sadiq etc. vs
Divisional Manager, United India Ins. Company (2014) 2 SCC 735; Surti
Gupta vs United India Insurance Company and Ors. 2015 (3) SCALE 795;
Kumari Kiran vs Sajjan Singh (2015) 1 SCC 539].
23. The enhanced compensation shall be subject to apportionment as
directed by the tribunal in the impugned judgment.
24. The award is modified accordingly.
25. The Insurance Company is directed to deposit the balance
compensation payable in terms of award, as modified above, with the
tribunal within 30 days from today, whereupon it shall be released to the
claimants. In case of default, the claimants shall be entitled to proceed with
execution proceedings before the tribunal.
26. It is noted that the tribunal had directed the'iiisurance company to
deposit the awarded compensation with UCO Bank, Delhi High Court
Branch in the name of claimants and file a compliance report with the
tribunal. It is pointed out that this was pursuant to directions ofthis Court in
MAC Appeal No.682/05 titled Union of India v. Nanisiri decided on
13.01.2010. The tribunal qupted directions (particularly para 16) of this
Court in the said jud^ent to direct the deposit with yCQ Bank, Delhi High
Court Branch.
27. It is noted that the claimants are residents of Sangam Vihar, New
Delhi-62 which is located in South Delhi. In these circumstances, it was not
proper on the part of the tribunal not to have ascertained the convenience of
the claimants and instead to suo motu direct the deposit of the compensation
with UCO Bank branch in the premises of the High Court in New Delhi. In
Union of India v. Nanisiri (supra) it was clearly directed that the
convenience of the victim or legal representatives has to be borne in mind.
It is hoped that the tribunals shall hereafter bear in mind the spirit of the
directions in Nanisiri (supra).
28. Be that as it may, the amount lying in UCO Bank shall also now be
released to the claimants by the tribunal by issuing appropriate directions.
29. The appeal is disposed of in above terms.
30. The tribunal's record be returned. ^
R.K.Gi
FEBRUARY24, 2016/afa^*'^t|OT
?
)SUU/,
