Delhi High Court
Dharam Singh And Anr. vs Parveen Sehgal And Ors. on 7 April, 1992
Equivalent citations: II(1992)ACC413, 1992ACJ1067, AIR1992DELHI347, 47(1992)DLT706, 1992(23)DRJ153, AIR 1992 DELHI 347, (1992) 2 TAC 540, (1992) 23 DRJ 153, (1992) 2 ACC 413, (1992) 2 ACJ 1067, (1992) 47 DLT 706
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
(1) This First appeal under Section 11O-D of the Motor Vehicles Act, 1939 (for short the Act) has been preferred by Delhi Transport Corporation and its driver against the award of the Motor Accident Claims Tribunal (for short the Tribunal) dated 27 October 1980 holding them liable for payment of a compensation of Rs. 79.951.00 to the respondents/ claimants (termed Claimants hereafter).
(2) The claimants have filed cross-objections, being C.M. No. 3571/81, wherein they have claimed compensation in the sum of Rs. 5 lakhs with interest at the rate of 18% per annum.
(3) On 22 January 1976,at about 7.15 P.M., Mr. C.P.Sehgal was returning from office on his scooter via Patel Road when a bus bearing No. Dlp 680, hit the scooter from behind near Cottage No. 22. As a result there of the scooter fell down and Mr. Sehgal came under left front wheel of the bus. Since the bus was at a high speed, the driver could not stop it even after knocking down Mr. Sehgal and drugged him up to a considerable distance. He sustained grievous injuries in consequence whereof he died in the hospital after three days. The bus, driven by appellant No. 1, belonged to Delhi Transport Corporation, appellant No. 2. herein. The deceased, an Accountant in the State Bank of India, was stated to be aged about 39 years at the time of his death. He left behind his widow aged about 30 years, two small children aged 8 and 5 years and mother aged about 60 years, the claimants.
(4) The claim petition under Section 110 A of the Act was filed on- 1.4 July 1976 making a claim of Rs. 5 lakhs with costs and future interest at the rate of 12% per annum against the appellants. The petition was contested by both the appellants, who filed a joint written statement.
(5) On the pleadings of the parties, issued were framed and evidence was led by both the parties. On appraisal of evidence, the Tribunal found: that the fatal accident took place solely on account of rash and negligent driving of the offending bus by the driver, appellant No. 1. no negligence could be attributed to the deceased, who was 39 years of age at the time of his death; his monthly emoluments were Rs. 1938.75 P per month and dependency of the claimants on him was Rs. 667.00 per month. Taking the total dependency of the claimants on the deceased for 15 years, the Tribunal computed the total compensation at Rs. l,20,000.00 (667 x 12 x 15). Out of the said amount three deductions, namely: (i) 10 'o for acceleration of pecuniary gain on accent of receipt of gratuity, provident find and leave encashment by the widow from the employer bank and another sum from LIC; (ii) rent received by her for a period of 10 years at Rs. 150.00 per month from letting out apart of the house belonging to the deceased for a short period till the two minor children attained majority; and (iii) on account of uncertainties of life and imp sum payment. Thus, the net amount of compensation payable to the claimants was computed at Rs.79,951.00 .lt is thus award which has been challenged by both the parties.
(6) Mr. H.S. Dhir, id. counsel for the appellants, while faintly challenging the correctness of the amount of compensation awarded to the claimants, has vehemently contended that it has not been established beyond doubt that the accident was caused due to rash and negligent driving of the bus by appellant No. 1. Ms. Anjana Gosain, Id. counsel for the claimants, on (.he other hand, while supporting the finding of the Tribunal on rash and negligent act on the part of the driver of the bus in question submits that the compensation awarded by the Tribunal is neither adequate nor is its mode of computation correct in that; (i) monthly dependency of the dependants has been take'n at a low figure; (ii) a lower multiplier has been applied; (iii) deduction on account of uncertainities of life and lump sum payment, gratuity, provident fund, leave encashment and insurance money ought not to have been made out of the amount of compensation; and (iv) the interest should have been awarded from the date of filing of the claim petition.
(7) The first question which arises for consideration is whether driver, appellant No. 1, was driving the offending bus rashly and negligently. While concluding that the driver of the bus was driving the bus in rash and negligent manner, the Tribunal has relied on the testimony of Public Witness 3 - Vinay Kumar Chadha, an eye witness.Vinay Kumar Chadha has deposed that on the fateful day when he was coming from his residence on to the main road near Patel Nagar bus Stand, he saw a two wheeler scooter coming from the side of East Patel Nagar on his proper left hand side, when a Dtc bus (Offending bus) came from the same direction, from which the decease was coming, at a fast speed and hit the scooter from behind with it left front side. The bus after causing the impact cragged the scooter and the rider (the deceased) up to - distance of about 15 yards. A big crowd had collected at the site of the accident. He had found out the name of the driver and had removed the deceased to the hospital. Ld. counsel for the appellants submits that the witness is not believable. This statement carries many contradictions and there is no other independent evidence supporting his version.
(8) I have recorded the statement of Public Witness 3- Vinay Kumar Chadha. I do no: find any material in consistency or contradiction in his statement-As observed by the Id. Tribunal, and rightly so, statement of Public Witness 3 - is fully corroborated by the site plan, prepared and proved by the investigation officer, Public Witness 5 - Mohinder Singh S. I. Absence of any other eye witness, I feel, there is no ground for disbelieving the version of Public Witness 3 particularly when it is well known that mostly people from public are unwilling to Join investigation and undergo in con vengeance in police proceedings. Testimony of Public Witness 3 cannot be rejected merely because his statement was recorded by the Investigating Officer after 20 days of the accident, as contended by the Id. counsel for the appellants. The afore said delay of 20 days in proceedings of the kind, which are essentially civil, cannot be said to be fatel or very material. The witness is independent, unrelated and has withstood the test of searching cros-examination. The Tribunal has believed him and there is no reason to differ from its conclusion, particularly when the version as to the manner in which the accident took place as gives by the appellants in their written statement differs materially from the version in their evidence. The finding of the Tribunal about the cause of accident being rash and negligent driving of the bus is accordingly affirmed.
(9) The next question now is with regard to the quantum of compensation which should be awarded to the claimants.
(10) The two major factors for determining a just and fair compensation, which could be culled out from a catena of dase law on the subject are: (i) the approximate annual dependency of the legal heirs in terms of the annual loss accruing to them due to abrupt termination of a life and (ii) the multiplier to be applied in quantifying the compensation amount. Broadly speaking, annual earnings of the deceased at the time of the accident and/ or later and the amount out of it which he was spending or could spend for the maintenance of the dependents is considered to be an important guiding factor. As held in Gobald Motor Service Ltd. and another VS.R.M.K. Veluswami and others, and followed in C.K. Subramania lyer and others vs. T. Nunhi Kuttan Nair and others. 1970 A.C.J. 110, there can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. Again, various factors which are taken into consideration in arriving at a lump sum amount are neither accurate nor precise. The compensation determined is always rough calculation based on some Judge made norms.
(11) Now, as regards income of the deceased, while concluding that carry home salary of the deceased was Rs. 1000.00 per month, the Tribunal has relied on the testimony of Public Witnesse-2- Mr. B.B. Sharma, an officer of the State Bank of India, where the deceased was employed, who stated that on the date of the death of the deceased his total salary was Rs. 1,938.75, out of which sum of Rs. 376.00 was deducted on account of provident fund and income tax etc., giving a net amount of Rs. 1,562.75, which was carry home salary of the deceased. In my view the Tribunal has gone wrong in taking the carry home salary at Rs. 1,OOO.00 and from it making l/3rd deduction towards personal expenses of the deceased. Though the question of deduction towards personal expenses appears to be justified but the same should have been made out of the carry home salay of Rs. 1,562.00 . In this manner the yearly pecuniary loss to the beneficiaries should have been computed at Rs. 12.000.00 (1000x12).
(12) The next point is regarding the multiplier to be adopted in the present case to arrive at the amount of compensation. Though there is no set formula to determine the exact multiplier but generally life expectancy of the deceased and of the beneficiaries is taken into account for the purpose. In the present case, I find that the Tribunal has gone wrong in applying a multiplier of 15 years. No basis therefore has been indicated. The Tribunal has taken the age of the deceased at 39 years, which is not disputed. It has also come in evidence of Public Witness 6-Mrs. Praveen Sehgal that the deceased possessed good health and was a man of good habits. In the year 1980 his mother was a lout 60 years old. She is still alive and in fact one of the claimant. This prima facie shows that there is a history of longevity in the family of the deceased. It can, therefore, be safely held that but for the accident the deceased would have lived and supported his family up to the age of 70 years. The deceased was working as a Grade I officer in the State Bank of India and it is a well known fact that the bank employees have reasonably good prospects of employment after retirement. Multiplying the annual dependency of Rs. 12.000.00 the compensation payable to the claimants works out to Rs. 3,72,000.00 (-1000 x 12 x 31). In my opinion this should be a just and fair compensation.
(13) Ms. Gosain ld. counsel for the claimants, has also contended that future promotions resulting in increased emoluments should also be taken into account while determining the pecuniary loss to the dependents. This is not a universal rule. Life is full of unpredictable uncertainities. It is possible that the deceased's family would have enlarged during the course of time and increase in his emoluments would have been off set thereby. At any rate, I feel, the compensation I have determined to be payable to the claimants would take care of the contention as monthly earnings on the amount assessed would be much more than the monthly pecuniary loss of Rs. 1,000.00 , determined above, if the amount is invested properly.
(14) As for the propriety of the deduction made by the Tribunal on account of the amounts received by the claimants as gratuity, provident fund, leave encashment and proceeds of life insurance following the death of the deceased, as also on account of uncertainties of life and lump sum payment. In Bhagwati Devi and others v. Ish Kumar and others, 1975 A.C.J. 56. H.L. Anand, J. (as he then was) after considered the questions in great detail concluded that no deduction should be made from the compensation on account of gratuity, pension, provident fund and insurance money. It was observed that these benefits cannot to considered as death benefits but were the benefits which the legal representative was entitled even otherwise on the retirement on the deceased. I am in respectful agreement with the said view. Similarly on account of phenomenal spurt inprices, the benefit of lump sum payment has lost all its significance. I am, therefore, of the considered opinion that no deduction should have been made from the compensation on account of gratuity, provident fund. leave encashment, life insurance proceeds, uncertainties of life and lump sum payment. The question of deduction on account of lump sum payment was also recently considered by the Supreme Court and it has been held that such a deduction should not be made.
(15) The next question is about the deduction made by the Tribunal out of the compensation determined by it on account of the rent from a part of the house belonging to the deceased, which the widow let out temporarily in order to survive. On this question of such deduction there cannot be a universal rule either way. it depends on the facts and circumstances of each case. The nature and the extent of assets left by the deceased has to be taken into consideration while deciding this question. Broadly speaking, a benefit of asset available during the life time of the deceased should not be denied by the beneficiaries and the same deducted while computing the pecuniary loss to them. In the present case, the house, a part of which was let out for a short period, was available to the claimants even during the life time of the deceased. It had to be let out per force for the survival of the family. In my opinion, no deduction should have been made on this count as well. Similar view has been taken by the Punjab & Haryana High Court in Damyanti Devi and others v. Sita Devi and others, 1972 A.C.J. 334, wherein it has been held that where the asset is such that its benefit was being taken or was available to the family during the life time of the deceased the value of such asset has not to be taken into consideration in mitigation of the damages.
(16) Lastly, the question is about the interest under Section 110 Cc of the Act. The Tribuna I has not given any reason for not granting interest under the said section. Having regard to the circumstances of the case, in my opinion interest at the rate of 14% will be reasonable.
(17) In view of the above discussion, the amount of compensation payable to the claimants is enhanced to Rs. 3,72,000.00 with interest at 14% per annum from the date of filing of claim petition till the dale of payment. In case any amount has already been paid to the claimants pursuant to the said award, no interest would run thereon from the date of such payment. Futher, if the amount, thus due, is paid by the appellants to the claimants within two months from today along with interest at the rate of 12% per annum the claim would stand satisfied. One fifth of this amount will be paid to the mother of the deceased. Mrs. Daya Wati and the balance amount shall be distributed amongst the remaining three claimants in equal shares.
(18) In view of the enhancement in compensation in claimants cross-objections, the appeal filed by the appellants is rendered infructuous and is accordingly dismissed. The cross-objections are partly allowed, with no order as to costs.