Delhi High Court
Umesh Devi & Ors. vs Uttar Pradesh State Road ... on 9 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 09, 2018
+ MAC. APP. 777/2013 & CM 21034/2018
UTTAR PRADESH STATE ROAD TRANSPORT
CORPORATION ..... Appellant
Through: Ms. Garima Prashad and Mr.
Shadab Khan, Advocates
Versus
UMESH DEVI & ORS. .....Respondents
Through: Mr. Sushant Mukund, Advocate
+ MAC. APP. 166/2015
UMESH DEVI & ORS. ..... Appellants
Through: Mr. Sushant Mukund, Advocate
Versus
UTTAR PRADESH STATE ROAD TRANSPORT
CORPORATION & ORS. .....Respondents
Through: Ms. Garima Prashad and Mr.
Shadab Khan, Advocates for
respondent No.1
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals are directed against Award of
14th March, 2013 vide which compensation of `12,33,250/- with interest
@ 7.5% per annum has been awarded to Claimants.
2. In the above-captioned first appeal, appellant- Uttar Pradesh State
Road Transport Corporation (henceforth referred to as the "Owner")
seeks reduction in the quantum of compensation granted, whereas in the
above-captioned second appeal, enhancement of compensation is sought
by Claimants. Since these two appeals arise out of common impugned
Award of 14th March, 2013, therefore, both these appeals have been heard
together and are being decided by this common judgment. The facts as
noted in impugned Award are as under:-
"The brief facts, as stated by petitioners, are that on
27.03.2009, Sh. Bir Singh, Baby Preeti and Master Rahul
with some other persons were coming by Indica Car no.DL-
3CU-1569 from Village Hasan Pur to Delhi and when the
Indica Car reached near Koral Use Factory, Gajrola, a
vehicle no. UP-53T-7772, driven by respondent no. 1 at a
high speed and negligently, hit the Indica car. Sh. Bir Singh,
Baby Preeti and Master Rahul sustained serious injuries
and Sh. Bir Singh died due to the injuries suffered in the
accident."
3. The Motor Accident Claims Tribunal (hereinafter referred to as
„the Tribunal‟) has relied upon the evidence of Umesh Devi wife of Bir
Singh, who had died in a vehicular accident on 27th March, 2009, and the
other evidence on record, to award the compensation as noticed
hereinabove. Deceased-Bir Singh was aged 42 years on the day of this
vehicular accident and as per the evidence of Umesh Devi (PW-1),
deceased was owner and driver of Auto-rickshaw. The Tribunal has
calculated the „loss of dependency‟ on minimum wages and has deducted
1/4th towards the „personal expenses‟ of the deceased. By applying the
multiplier of 14, the „loss of dependency‟ has been assessed at
`11,46,600/-. Compensation of `25,000/- has been awarded under the
head of 'Loss of love and affection‟ and 'Funeral Expenses' of `5,000/-
have been granted by the Tribunal. Under the head 'Loss of Estate',
compensation of `10,000/- has been granted and `10,000/- has been
granted under the head of "loss of consortium" by the Tribunal. The
break-up of compensation awarded by the Tribunal to the Claimants is as
under:-
1) Loss of Dependency : `11,46,600/-
2) Funeral Expenses : `5,000/-
3) Loss of Estate : `10,000/-
4) Loss of consortium : `10,000/-
5) Loss of love and affection : `25,000/-
__________
Total : `12,33,250/-
4. The challenge to impugned Award by learned counsel for the
Owner of the bus in question is on the ground that the deceased had
substantially contributed in causing the accident in question. It is
submitted that the Tribunal has arbitrarily assessed the income of the
deceased at `7,000/- per month. It is further submitted that the minimum
wages payable to a skilled worker in Delhi were `4107/- per month on
the day of accident, which ought to have been adopted for assessing the
„loss of income‟. It is next submitted that in view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & Ors. (2017) 16 SCC 680, addition of 25% towards „future
prospects‟ ought to have been made by the Tribunal. So, it is submitted
that the compensation granted by the Tribunal needs to be suitably
reduced.
5. On the contrary, learned counsel for Claimants/legal heirs of
deceased refutes the aforesaid stand taken on behalf of the Owner of the
bus in question and submits that the compensation granted by the
Tribunal is inadequate. To seek enhancement in quantum of
compensation granted by the Tribunal, Claimants' counsel submits that
the deceased was also owning an Indica car and was earning handsomely
by plying it as a Taxi and so, the income of deceased ought to have been
assessed at `15,000/- per month. It is submitted that in view of Supreme
Court's Constitution Bench decision in Pranay Sethi (supra), the
compensation granted under the „non-pecuniary heads‟ ought to be
enhanced.
6. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that this accident was witnessed by
Ram Bharose (PW-2),who was travelling alongwith the deceased in the
car in question. The evidence of this witness to the effect that the bus in
question was coming from the wrong side at a high speed, remains
unchallenged. In the face of afore-referred eye-witness account rendered
by the Ram Bharosey (PW-2), I find that no reliance can be placed upon
self-serving evidence of R1W1-driver of the bus in question, who claims
that the bus in question was being driven at a speed of 45 KMs per hour.
In the face of evidence of eye-witness (PW-2) and FIR of this case, the
plea of contributory negligence raised on behalf of owner of the bus in
question is hereby repelled.
7. On the aspect of income of deceased, I find that his wife has
deposed that the deceased was earning `30,000/- to `35,000/- per month
and he used to pay monthly installment of `11,620/- for the auto and
`5,225/- for Indica car respectively. There is no worthwhile cross-
examination of this witness. As per evidence of PW-4- Sh. Rahul Talwar,
Manager of M/s.Goodman Auto Deal, deceased was repaying the loan
amount in instalments. In light of the aforesaid, there is no justification to
assess the income of deceased on minimum wages payable to a skilled
worker. The Tribunal has assessed the income of deceased at `7,000/- per
month. Judicial notice can be taken of the fact that auto-drivers generally
earn not less than `10,000/- per month. Thus, I find that in the face of
evidence of PW-4-Sh. Rahul Talwar, Manager of M/s.Goodman Auto
Deal and PW-3-Sh. Mulakh Raj, Proprietor of M/s.Grover Auto Deal, the
income of deceased deserves to be assessed at `10,000/- per month.
8. In view of Supreme Court's Constitution Bench decision in Pranay
Sethi (supra), addition of 25% towards „future prospects‟ ought to be
made. The Tribunal has erred in making addition of 30%. However, the
Tribunal has correctly deducted 1/4th towards „personal expenses‟ of
deceased and applied the multiplier of 14. Accordingly, the „loss of
dependency‟ is reassessed as under:-
`10,000/- X 12 X 14 X 125/100 X 3/4 = `15,75,000/-
9. So far as compensation granted by the Tribunal under the „non-
pecuniary heads‟ is concerned, it needs to be brought in tune with
Supreme Court's Constitution Bench decision in Pranay Sethi (supra).
Accordingly, compensation granted to Claimants/legal heirs of deceased
by the Tribunal under the head of „Loss of Love and affection‟ is
disallowed. However, the „funeral expenses‟ are increased from `5,000/-
to `15,000/- and compensation granted under the head „Loss of estate‟ is
also increased from `10,000/- to `15,000/-. The compensation granted
under the head of „loss of consortium‟ is also increased from `10,000/- to
`40,000/-. Accordingly, the compensation payable to Claimants/legal
heirs of deceased is reassessed as under:-
1) Loss of Dependency : `15,75,000/-
2) Funeral Expenses : `15,000/-
3) Loss of Estate : `15,000/-
4) Loss of consortium : `40,000/-
__________
Total : `16,45,000/-
10. In light of the aforesaid, compensation of `12,33,250/- granted by
the Tribunal to Claimants/legal heirs of deceased-Bir Singh is enhanced
to `16,45,000/-. A Three Judge Bench of Supreme Court in a recent
decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571 has granted
interest @ 9% per annum on the awarded compensation and so, claimants
are also entitled to interest @ 9% per annum. Hence, the reassessed
compensation shall carry interest @ 9% per annum. Owner of the bus in
question is granted six weeks' time to deposit the enhanced compensation
alongwith interest @ 9% per annum with the Registrar General of this
Court. Thereafter, the reassessed compensation be disbursed to
Claimants/legal heirs of deceased in the manner and ratio as indicated in
the impugned Award. Statutory deposit be refunded to the owner of the
bus in question.
11. While modifying the impugned Award in aforesaid terms, the
above-captioned two appeals along with the pending application are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 09, 2018
s
