Delhi High Court
Sh.Bharat Gulluani & Ors. vs Sh.Aslam & Anr. on 14 November, 2008
Author: V.B.Gupta
Bench: V.B. Gupta
* HIGH COURT OF DELHI : NEW DELHI
MAC App. No.470 of 2008
% Judgment reserved on:20th October, 2008
Judgment delivered on 14th November, 2008
1.Sh.Bharat Gulluani
2.Sh.Vikas
3.Sh.Gagan Gulluani
(All sons of Late sh.Naubat Ram,
R/o H-56, Karam Pura,
New Delhi-110015. ....Appellants
Through: Mr.Rajeshwar Kumar Gupta, Adv.
Versus
1.Sh.Aslam
s/o Sh.Amanat Khan
492, „O‟ Block, Janta House,
Sunder Nagri, Delhi.
Driver/Owner of TSR No.DL 1RF 1874
2. United India Insurance Co.Ltd.
10, Walraj Mandir, 1st Floor,
Raj Block, Near Gayanand Cinema,
GT Road, Shahdra,
Delhi-110032. ...Respondents.
Through: Mr.Neeraj Bhardwaj, Adv.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
MAC App.No.470 of 2008 Page 1 of 9
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
Present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (for short as „Act‟) challenging the order dated 19th May, 2008 passed by Smt. Swarana Kanta Sharma, Judge, MACT Delhi (for short as „Tribunal‟).
2. Brief facts of this case are that on 22nd December, 2004 deceased Naubat Ram was going to Punjab National Bank, Kirti Nagar Branch from his residence at Karampura on his bicycle. When he reached at Mochi Market, Opposite Natraj Cinema, Kirti Nagar, all of a sudden a TSR bearing registration No.DL 1R F 1874 driven by respondent No.1 in a rash and negligent manner at a high speed had hit him. Due to MAC App.No.470 of 2008 Page 2 of 9 the impact, deceased had fallen down on the road and had sustained grievous injuries and later on he died.
3. Respondent No.1 in his written statement took the plea that he has been falsely implicated in this case and there was no negligence on his part and the vehicle was not being driven in a rash and negligent manner.
4. Respondent No.2-Insurance Company has admitted the factum of insurance.
5. Vide the impugned judgment, the Tribunal awarded the compensation of Rs.1,46,000/- to the claimants and also interest at the rate of 7.5% p.a. from the date of filing of petition, till realization.
6. It has been contended by the learned counsel for appellants that the Tribunal has taken the income of the deceased on the basis of minimum wages of an unskilled labourer despite PW2 Mr. Sandeep Sharma, employer of the deceased, who was examined before MAC App.No.470 of 2008 Page 3 of 9 the Tribunal and proved the salary certificate issued by him as Ex. PW2/B.
7. It may be pertinent to point out that initially the petition before the Tribunal was filed by Smt. Shanti Devi, widow of deceased as well as the present appellants who are the sons of the deceased.
8. During the course of the proceedings, Smt.Shanti Devi died and application under Order 22 Rule 2 CPC for bringing her legal heirs on record was allowed vide order dated 15th April, 2008 passed by the Tribunal.
9. The present appellants, who are the sons of the deceased Naubat Ram, have filed the present appeal seeking enhancement of the compensation.
10. The Apex Court in plethora of cases has held that while assessing the income of the deceased in motor accident cases, the tribunals should bear in mind that the same should be assessed on the basis of the cogent and the reliable evidence produced and duly proved on record.
MAC App.No.470 of 2008 Page 4 of 9
11. In this regard the thumb rule is that, where there is no cogent evidence on record to prove the monthly income at the time of accident then the minimum wages notified under the Minimum Wages Act prevalent at the time of accident can be taken into consideration.
12. In the present case, Shanti Devi, wife of the deceased as PW1 in her cross examination stated that her husband, the deceased was 62 years old at the time of accident and was employed in a computer company at Kirti Nagar and was getting monthly salary of Rs.5,000/- plus Rs.1,000/- towards conveyance charges from his employer, M/s. Inside Graphics.
13. PW-2 Sh. Sandeep Sharma, the employer of the deceased, tendered his evidence by way of affidavit and stated that he is partner of "Inside Graphics"
where the deceased was working. He proved the salary certificate of deceased Ex.PW-1-1/1.MAC App.No.470 of 2008 Page 5 of 9
14. In his cross examination, he admitted that the firm is a partnership firm and that the son of the deceased is working in the firm since February, 2005. The firm is paying income tax. However, they have no proof to show that the deceased was working with them. He also stated that the salary paid to the employees is not shown as expenses in the income tax return.
15. In the present case, no cogent evidence has come on record, as regards the income of the deceased. There is also nothing on the record to show about the educational or technical qualification of the deceased.
16. In the absence of any proof, the Tribunal has taken the income of the deceased on the basis of minimum wages of unskilled worker as Rs.2,894.90 (rounded off as Rs.2,900/-) per month and after deducting 1/3rd on account of personal expenses, had adopted the multiplier of 5 as per Second schedule of the Act since the age of deceased was 62 years. MAC App.No.470 of 2008 Page 6 of 9
17. The main dependants upon the earning of the deceased were his wife, who had already died during the course of the proceedings. Now, the appellants are sons of deceased and are aged 31, 29 and 27 years. As per Ex. RW-3/1, all the appellants are gainfully employed and are earning Rs. 12,000/-, Rs. 7,500/- and Rs. 3,500/- per month respectively. There is nothing on record to show that any of the sons of the deceased was financially dependent upon him.
18. In Bhagwani Devi v. Krishna Kumar Saini, AIR 1985 P & H 347, where all the sons of the deceased were adult and employed during his life time, the Punjab and Haryana High Court held that;
"None of these sons has been shown to have been dependent upon the deceased. They were all adults and employed during the lifetime of the deceased. It is well settled that occasional gifts by parents to grown up children for any special purpose or otherwise does not denote dependency justifying compensation being awarded to such children on this account."MAC App.No.470 of 2008 Page 7 of 9
19. In A.P.S.R.T.C. represented by its General Manager, Hyderabad v. B. Krishnaji Rao and another, 1995 ACJ 983, the Andhra Pradesh High Court has observed as under;
"As regards loss to the estate, the legal representatives are entitled to compensation in accordance with the shares, they are entitled to under their Personal Law. But, so far as the loss of dependency is concerned, they will be entitled to compensation only if they are dependents and not otherwise. (Md. Abdul Wahab v. Setwin 1988 Ace CJ 743 (Andh Pra)."
20. Keeping in view all the facts and circumstances brought on record, I am of the view that the compensation as awarded by the learned tribunal is just and fair and no ground is made out for enhancement of compensation as awarded by the Tribunal.
21. Accordingly, no infirmity can be found with the impugned Judgment of the Tribunal.
MAC App.No.470 of 2008 Page 8 of 9
22. The present appeal is, therefore, dismissed.
23. No order as to costs.
14th November, 2008 V.B.GUPTA, J.
Bisht/rs
MAC App.No.470 of 2008 Page 9 of 9