Delhi High Court
Pardeep Kumar Gupta vs Abdul Gaffar & Ors. on 22 August, 2017
$~R-135
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd August, 2017
+ MAC APPEAL No. 553/2009 AND CM 16427/2009
PARDEEP KUMAR GUPTA ..... Appellant
Through: Mr. Rajeshwar Kr. Gupta and
Ms. Kovida Priyam, Advocate
versus
ABDUL GAFFAR & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Abdul Jabbar suffered injuries in a motor vehicular accident
that occurred on 05.10.2005, and died in the consequence, it becoming
subject matter of investigation by the police through first information
report no.416/05 of PS Khajoori Khas registered on the statement of a
eye witness Kuldeep Kumar and observations of the scene of the
occurrence by the investigating police officer and attendant
circumstances. The respondents instituted accident claim case (MACT
suit no.499/05) on 21.11.2005 impleading the appellant herein as the
respondent on the averment that he was the driver-cum-owner of the
two wheeler scooter bearing registration no.DL-5SE-0203 which was
involved in the accident, it having occurred due to negligent driving
by him. The scooter admittedly was not insured against third party
risk for the period in question. The appellant admitted being driver
and owner of the scooter but denied any involvement of the scooter in
the accident or negligence on his part, the position taken by him being
the accident had been caused by some other vehicle which was
moving ahead of him.
2. The Motor Accident Claims Tribunal (Tribunal), by judgment
dated 07.09.2009, accepted the case of the claimants about the fatal
accident having occurred due to negligent driving of the scooter by the
appellant, awarding compensation calculated in the total sum of
Rs.7,64,000/- directing the appellant to pay.
3. The appellant, by the appeal at hand, has questioned the
correctness of the findings recorded on the question of involvement
and on the issue of negligence, also seeking to assail the computation
of compensation.
4. The appeal was admitted by order dated 04.10.2010. No one
has appeared on behalf of the respondents when the appeal is taken up
for hearing.
5. The appellant has been heard through counsel and the record
perused.
6. The plea of the appellant about non-involvement in the accident
cannot be accepted. The Tribunal has considered the evidence led
before it in entirety and has primarily gone by the principle of res ipsa
loquitur. Concededly, the appellant was present at the scene. He had
also fallen down and had suffered injuries in the process, his vehicle
also having suffered damage. The findings returned by the tribunal on
the question of involvement of the scooter and negligence on the part
of the appellant, therefore, do not call for any interference.
7. There is, however, substance in the plea of the appellant about
the computation of compensation. It is noted that the tribunal assumed
the income of the deceased on the basis of minimum wages of an
unskilled worker at Rs.3,166/- in as much as there was no formal
proof of nature of avocation or earnings of the deceased. The tribunal
thereafter added the element of future prospects and assumed the age
of the deceased, aged 33 years, this on the basis of copy of the ration
card (Ex. P3) and invoked the multiplier of 16. The computation was
erroneous for various reasons.
8. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia,
ruled that the element of future prospects of increase 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 of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan
Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views,
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.
9. Against the above backdrop, by judgment dated 22.01.2016
passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.),
this Court has found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on
12.01.2015, 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.
10. There was no proof of regular income of the deceased.
Therefore, the element of future prospects of increase could not have
been added. The age reflected in the ration card was based on a mere
declaration. Better proof about the age of the deceased at the relevant
time was available in the form of admission by Abdul Gaffar (PW-1)
the father of the deceased, who testified that he was 45 years old when
the death occurred. In this view, the multiplier of 14 should have been
applied.
11. Thus, the loss of dependency is re-computed after deducting
one-fourth towards personal and living expenses at (Rs.3,166/- x 3 / 4
x 12 x 14) Rs.3,98,916/-, rounded off to Rs.3,99,000/-.
12. Adding the other components of compensation awarded by the
tribunal, the total compensation in the case comes to (Rs.3,99,000/- +
Rs.5,000/- + Rs.5,000/- + Rs.10,000/- + Rs.60,000/-) Rs.4,79,000/-.
The award is modified accordingly.
13. The appellant had been directed, by order dated 04.10.2010, to
deposit an amount of Rs.3,50,000/- which was allowed to be released
to the claimants. The said amount was deposited and has accordingly
been released. The appellant shall deposit the balance in terms of the
modified award with the tribunal within 30 days making it available to
be released to the claimants. In case of default, the interest liability in
terms of the impugned judgment shall apply.
14. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
AUGUST 22, 2017
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