Delhi District Court
Dr.Mihir Shreyas Munshi vs Union Of India on 1 March, 2014
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IN THE COURT OF SH.HARISH DUDANI
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.98/11
DATE OF INSTITUTION: 30.5.2007
1. Dr.Mihir Shreyas Munshi
S/o Sh. S. P. Munshi
R/o C202, Mandar Apts. 7, Bungalows
Andheri West, Mumbai400061 .........Petitioner
Versus
1.Union of India
Through Secretary, Ministry of Defence
South Block, New Delhi110001.
2.Army Headquarters
Through Chief of Army Staff
Sena Bhavan, New Delhi110011.
3.Sep.Vijay Kumar
Army Headquarters(Liaison Unit)
Delhi Cantt. .............Respondents
Final Arguments heard on: 14.2.2014 Award reserved for : 01.03.2014 Date of Award : 01.03.2014 AWARD
1. Vide this judgment cum award I proceed to decide the petition filed U/s 166 and 140 of Motor Vehicle Act, 1988, as amended up to date 2 (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 1.2.2007 Dr.Harsha Munshi, the deceased was travelling in Santro car registration no.DL3CAB1037 being driven by her husband, the petitioner and deceased Dr. Harsha Munshi were going from Green Park to Kasturba Gandhi Marg and at about 7.55 AM they reached the crossing of Mansingh Road and Rajpath and were crossing traffic signal on their green light and suddenly an Army Mahindra Jeep bearing registration no.↑03B085434L owned by respondent no.1 and 2 and driven by respondent no.3 came from Rajpath from Rashtrapati Bhavan side in a rash and negligent manner at a very high speed broke the red light and dashed against the Santro car of the deceased from the left side. The Army Mahindra Jeep struck the Santro car driven by the petitioner with the deceased as passenger with such force that the Santro car was tossed in the air, sent rolling a few meters and finally turned upside down near the foot path. Dr. Harsha Munshi expired on the spot. There were several witnesses to the fatal accident including Dr.Ajay Aggarwal and Dr.Sumit Bhargava who both work at the same clinic as the deceased and who were following in their respective cars behind the car of the deceased and Mr.Avdhesh Yadav who was taking his morning walk near 3 the accident site at that time. Immediately these persons with public assistance turned the Santro car upright and extracted the petitioner and his wife who had died on the spot. PCR van was called immediately and the petitioner and his wife were removed in the PCR van to RML hospital where Dr. Harsha Munshi was declared brought dead on arrival. The petitioner was critical and was moved to the ICU of Gangaram hospital from where he was discharged only after 1012 days. The deceased was highly qualified super specialist Radiological Doctor her qualifications included MBBS, DMRD and DNB in Radiodiagnosis(equivalent to MD). It is stated that at the time of accident the deceased was employed with Diwan Chand Satyal Pal Radiological & Imaging Services at Kasturba Gandhi Marg, New Delhi and was drawing salary of Rs.80,000/pm. It is stated that the present employers of the deceased had made a fresh offer of annual salary of Rs.10,20,000/ w.e.f.1.4.2007. Dr.Ashok Khurana of the Advanced Imaging Research Studies Ultrasound Lab had also offered the deceased an immediate annual salary of Rs.18,00,000/ apart from vehicle for conveyance with the option of additional payment of 40% of fees from patients examined by her from 1.4.2008. The deceased initially was working as Senior Registrar in the Department of Radiology at the nationally renowned Jaslok Hospital & Research Center in Mumbai. Thereafter the deceased joined the world renowned Diwan Chand Satya 4 Pal Radiological & Imaging Services Clinic at Kasturba Gandhi Marg, New Delhi in 2002. Her initial salary was Rs.7,20,000/per annum whereas in 2007 she was receiving offers of Rs.18,00,000/ per annum plus perks and percentage of fees from patients treated. It is thus apparent that the deceased was getting manifold annual increase in salary which would only increase in frequency and quantum with rise in seniority. It is stated that the accident occurred due to rash and negligent driving of the offending vehicle by respondent no.3 and the vehicle was owned by respondent no.1&2 and as such all the respondents are jointly and severally liable to pay compensation. It is prayed that Rs. 21,20,00,000/(Rs. Twenty One Crore Twenty Lacs only) alongwith interest @ 24% per annum be awarded as compensation in favour of petitioner and against the respondents.
3. Respondents no. 1 and 2, have filed joint written statement and have contested the petition. It is stated that the application for compensation is not maintainable as the petitioner was not dependent on the deceased. It is submitted that only the beneficiaries/dependents are entitled to compensation for pecuniary or material loss resulting from the death of a person from whom there was a reasonable expectation of monetary benefit. It is submitted that the husband is not economically dependent on wife, thus the husband cannot claim any compensation. It is stated that 5 there was no wrongful act, neglect or default of the owners of the vehicle and thus the respondent no.1&2 are not liable to pay any compensation. Thus the claim is liable to be dismissed on this ground alone. It is stated that respondent no.3 was performing bonafide military duty and was discharging sovereign functions. The jeep was on defence duty thus the Doctrine of sovereign immunity is applicable in the instant case and the respondents are not liable to pay any compensation to the claimant for the alleged incident. It is stated that the alleged accident occurred due to rashness and negligence of the claimant himself and thus the respondent no.1&2 are not jointly or severally liable to pay any compensation to the claimant. Other averment on merit are denied.
4. Respondent no.3, has filed written statement and has contested the petition. It is stated that there was no wrongful act, neglect or default of respondent no.3, driver of the vehicle and thus the respondent no.3 is not liable to pay any compensation. It is stated that the respondent no.3 was performing bonafide military duty and was driving the military vehicles carefully and with due care and caution whereas the claimant himself was driving the Santro car rashly, negligently and flouted all traffic rules and regulations and thus the petition is not maintainable against the respondent and is liable to be dismissed on this ground alone. Other avement on merit are denied.
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5. From the pleadings of parties my Ld. Predecessor was pleased to frame following issues on 28.3.2008:
1.)Whether the wife of petitioner sustained fatal injuries in the road accident on 1.2.2007 by the Army vehicle Mahindra Jeep bearing registration no. ↑03 B085434L being driven by respondent no.3 in rash and negligent manner and owned by respondent no.1& respondent no.2?OPP.
2.)Whether the petitioner is entitled for compensation,if so, to what amount and from whom?OPP.
3.)Relief.
6. The petitioner has examined himself as PW1 and tendered his evidence by affidavit Ex.PW1/A and has proved the copy of marriage certificate Ex. PW1/1, birth certificate of deceased Ex. PW1/2, Death certificate of deceased Ex. PW1/3, copy of article dated 2.2.2007 from newspaper "HT Metro" showing photographs of santro car Ex.PW1/4, Registration certificate issued by Delhi Medical Council Ex.PW1/5, appointment letter of deceased issued by Jaslok Hospital, Mumbai Ex. PW1/6, last salary certificate dated 1.4.2005 Ex. PW1/7, initial salary certificate dated 1.9.2002 Ex.PW1/8, Offer letter of Diwan Chand Aggarwal Clinic Ex.PW1/9, Offer letter from Dr. Ashok Khurana Ex. PW1/10, ITR for the assessment year 200607 and 200506 Ex.PW1/11 and 7 Ex.PW1/12,Certificate of recognitions given by Marquis Who's Who World Report 2007 and accompanying description of deceased Ex. PW1/13 and other certificates, awards and other coverage Ex. PW1/14(colly).
7. Petitioner examined Dr.Ajay Aggarwal,Radiologist Diwan Chand Aggarwal Imaging Center 10B, Kasturba Gandhi Marg, New Delhi as PW2 who stated that on 1.2.2007 at about 7.50am he was driving his car and reached round about on Man Singh road and at that time he saw one accident at the crossing of Man Singh road and Rajpath between one jeep and a Santro car. PW2 stated that the jeep was coming from the side of Rashtrapati Bawan and the car was going towards Andhra Bhawan side from Man Singh road. The jeep hit the Santro car from its left side and due to impact of the said jeep the Santro car turned turtle on the patri and jeep also turned turtle on the Rajapth road itself and then came in the same position. PW2 stated that after the accident the public persons gathered over there and the inmates of the Santro car were taken out. The driver Mihir was taken out by the public persons from the said Santro car and PW2 alongwith the help of public persons taken out Harsha from the Santro car. PCR took both the injured to RML hospital and he informed his other collegues. PW2 stated that the accident took place due to negligent driving of the jeep driver who jumped the red light.
8. PW3 Dr.Bharat Aggarwal,Radiologist, Diwan Chand Aggarwal Imaging 8 Centre,10B Kasturba Gandhi Marg, New Delhi110001 stated that Dr.Harsha Munshi was working in Deewan Chand Aggarwal Imagine Centre and drawing her salary only for half day working in the said centre for a sum of Rs.40,000/per month at the time of accident and same is already Ex.PW1/7 and bears his signature at point A. PW3 stated that Dr.Harsha joined the centre in the year 2002 but he does not recollect the date and month on the salary of Rs.60,000/pm and he does not recollect when she was offered by the centre for half day working for Rs.40,000/ pm.PW3 stated that the offer letter for job dated 10.1.2007 to Dr.Harsha Munshi already Ex.PW1/9 bears his signature at point A for the consolidated annum salary of Rs.10,20,000/.PW3 also saw the letter dated 1.9.2002 of Dr.Harsha Munshi already Ex.PW1/A bearing his signature at point A and as per the letter she was working for a sum of Rs.7,20,000/ for full day from 8am to 7pm. PW3 proved original documents pertaining to employment and salary of deceased Dr.Harsha Munshi as Ex.PW3/1(colly.).
9. PW4 Sh.Kunal, Computer Operate, Delhi Medical Council, New Delhi brought record from Delhi Medical Council pertaining to registration of Dr.Harsha Hero Navani under registration no.20513 dated 1.9.2003 and same is Ex.PW4/1.
10.PW5 Dr.Ashok Khurana stated that he has been practicing as radiologist 9 for last 26 years and running his own clinic namely Advanced Imaging Research studies at C584, Defence colony, New Delhi24. PW5 stated that he had made offer of employment to deceased Dr.Harsha Munshi at Rs.1,50,000/pm alongwith 40% of fees received from patient examined by her vide letter dated 15.1.2007. PW5 identified his signatures on the said letter at point A and said letter is Ex.PW5/1. PW5 stated that the deceased Dr.Harsha Munshi was a highly qualified radiologist who had received national and international awards and due to this reason he was keen to employ her in his clinic.
11.Respondent no.3 examined himself as R3W1 and tendered his evidence by affidavit Ex.R3W1/A.
12.I have heard the Ld. counsel for the parties and perused the record. My findings on specific issues are as follows.
ISSUE NO. 1
13.As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that deceased sustained injuries in an accident caused due to rash and negligent driving of offending vehicle no. 03B085434L by its driver, the respondent no.3.
14.To determine the negligence of driver of offending vehicle it has been held in National Insurance Company Ltd. V/s Pushpa Rana & Another, 2009 ACJ 287 as follows:
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"The last contention of the appellant insurance company is that the respondentsclaimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal(supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced:(i) certified copy of the criminal record of criminal case in FIR no. 955 of 2004, pertaining (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A , Indian Penal Code against the driver was lodged; (iii) certified copy of FIR wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased. These documents are sufficient proofs to reach conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
15.The case of the petitioner is that on 1.2.2007 the petitioner alongwith his wife Dr.Harsha Munshi was going from Green Park to Diwan Chand Satya Pal Radiological & Imaging Services Clinic in a Santro car no.DL3CAB1037 and the said car was being driven by petitioner and at about 7.55am they reached crossing of Mansingh Road and Rajpath and suddenly a Mahindra Jeep bearing no.03B085434L being driven by respondent no.3 in rash and negligent manner came from Rashtrapati Bhawan side, jumped the red light and hit the car of the petitioner. The car was tossed in the air, after rolling for a few meters it turn upside down 11 near the footpath and Dr.Harsha Munshi expired at the spot. It is stated that Dr.Harsha Munshi was taken to RML hospital where she was declared brought dead. It is stated that case vide FIR No.48/07 u/s 279/337/304A IPC was registered at PS Tilak Marg. The petitioner appeared in the witness box as PW1 and filed his evidence by way of affidavit Ex.PW1/A. The petitioner also examined eye witness of the accident Dr.Ajay Aggarwal as PW2. In his affidavit Ex.PW1/A, the petitioner has reiterated the manner of accident as stated in the claim petition. In para 5 of preliminary objections of written statement , respondent no.3 has stated that he was performing bonafide military duty and driving the military vehicle with due care and caution whereas the claimant himself was driving the Santro car rashly,negligently and flouted all traffic rules and regulations. In para 10 of reply on merits in the written statement, respondent no.3 has stated that petitioner himself was driving his car rashly and negligently and jumped the red light at a very high speed. PW1 was cross examined by respondents and in the cross examination respondents have given suggestion to PW1 to the effect that he/petitioner himself caused the accident after jumping over the divider between the road towards opposite directions of the road which was denied by the petitioner. The contention of counsel for respondents is that PW1 has stated in the cross examination that he was to reach office at 12 8am and the accident was caused at 7.55am which shows that the petitioner was driving the vehicle at a high speed. In his cross examination, petitioner/PW1 has stated that his working hours were from 8am to 7pm and the distance between the place of accident and Aggarwal Centre where he was working was about 1 and 1 ½ km. PW1 denied the suggestion of respondents in the cross examination that he was driving his car at a high speed in order to avoid reaching late to his work place and he jumped red light and hit the army vehicle. Respondent no.3 appeared in the witness box as R3W1 and admitted that case vide FIR No.48/07, u/s 279/304A IPC was registered against him at PS Tilak Marg. It is to be noted that although in the written statement respondent no.3 has pleaded that accident took place due to negligence of petitioner they have tried to rely on the fact that the accident was caused at 7.55am and the petitioner was to reach his office at 8am and this is the reason he was driving at a high speed but no independent witness has been examined by respondents to corroborate their version but petitioner has examined Dr.Ajay Aggarwal as PW2 in order to corroborate the negligence of respondent no.3. PW2 stated in his examination in chief that on 1.2.2007 at 7.50am he was driving his car and he saw accident at the crossing of Mansingh road and Rajpath between one jeep and a Santro car and the jeep had hit the Santro car from left side and PCR 13 took both the injureds to RML hospital. In the cross examination PW2 stated that distance between his car and Santro was about 200meter and there was no other vehicle between his car and the Santro car on Mansingh Road.PW2 denied the suggestion of respondents that the accident took place due to negligence of driver of the Santro car. The petitioner has filed on record the certified copies of criminal record which consist of copy of final report u/s 173 CrPC, copy of statement of Dr.Ajay on the basis of which asal tehrir was prepared, copy of FIR, copy of site plan, copy of seizure memo of Santro car, copy of seizure memo of jeep, copy of seizure memo of driving license of respondent no.3, mechanical inspection report of jeep, mechanical inspection report of Santro car, copy of postmortem report of Dr.Harsha, copy of MLC of Dr.Harsha prepared at RML hospital and copy of MLC of petitioner.
16.In Municipal Corporation of Delhi Vs Sureshi Devi, MAC. APP. 479/2007 the Hon'ble High Court held that:
"11. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530, while holding that in a petition for award of compensation, the negligence has to be proved on the touchstone of preponderance of probability, in para 15, it was observed as under:
" 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular 14 manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties".
"12. The observations of the Supreme Court in Bimla Devi(supra) were referred with approval in later judgment in Parmeshwari Devi v. Amir Chand and Ors., (2011) 11 SCC 635.
17.As per mechanical inspection report of Santro car no. DL3CAB1037 it had damages i.e. left side body and both doors damaged, complete body damaged, right side body and both doors, window dented/damaged, roof body and bonnet body damaged and scratched, front rear window screen glass broken, rear diggi and diggi door damaged, dash board meter panel damaged, front and rear bumper damaged. As per mechanical inspection report of offending jeep it had damages i.e. front bumper and body damaged, front grill and bonnet dented, front both side fender damaged, front both parking lights damaged, engine fan broken, radiator socket damaged, right rear side body damaged, right rear wheel rod spring/ suspension system damaged. PW2 had stated in the examination in chief that the offending jeep had hit the car from its left side. As per final report respondent no.3 has been charge sheeted for the offences u/s 279/338/304A IPC. In view of the testimony of PW1& PW2 and 15 documents on record,the petitioner has prima facie succeeded in proving that Dr.Harsha Munshi died due to injuries sustained in this accident caused by the offending vehicle driven by respondent no.3 in a rash & negligent manner. Issue no.1 is accordingly decided in favour of petitioner and against the respondents.
ISSUE NO.2
18.Counsel for respondents has pleaded that the offending vehicle is owned by Indian Army and at the time of accident was on bonafide official duties and on account of sovereign immunity the respondents are not liable to pay compensation. In Pushpa Thakur v. Union of India, 1984 ACJ 559 Hon'ble Supreme Court held that the doctrine of sovereign immunity has no application so far as claims for compensation under The Motor Vehicles Act are concerned. In Head of Department, Air Force Station, Amla v. Ram Kumar Giri, III (2010) ACC 279 the Hon'ble High Court was pleased to allow compensation in a claim involving government vehicle.
19.As issue no. 1 has been decided in favour of the petitioner, he is entitled to compensation.
20.The petition has been filed by petitioner stating therein that the deceased Dr. Harsha Munshi was his wife and was 32 years of age at time of accident and was working as radiologist and was earning a sum of Rs.80,000/ per month. The contention of respondents is that the 16 petitioner is also a radiologist and was having his independent source of income and was not dependent on the earnings of deceased and on that account he is not entitled to any compensation.
21. In the case of A. Manavalagan v. A. Krishnamurthy & Ors., 1(2005) ACC 304 it was held:
"8. On the contentions urged, the following questions arise for consideration:
(i) What are the principles for determining compensation, where the claimant is not a dependant?"
"12. In Gobald Motor Service v. R.M.K. Veluswami, MANU/SC/0016/1961: (1962) 1 SCR 929 referring to Sections 1 and 2 of the Fatal Accidents Act (Sections 1A and 2 after 1951 amendment to the said Act), the Supreme Court pointed out the difference between damages recoverable under the said two Sections. It was held that while under Section 1 (new Section 1A) damages are recoverable for the benefit of the persons mentioned therein, under Section 2, compensation goes to the benefit of the estate; whereas under
Section 1, damages are payable in respect of loss sustained by the persons mentioned therein, under Section 2 damages can be claimed inter alia for loss of expectation of life and loss to the estate. The Supreme Court held that persons who claim benefit under Section 1 and 2 need not be the same as the claims under the said two Sections are based upon different causes of action. The Supreme Court held: "The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State v. Gokal Chand (AIR 1925 Lah 636). In that case, Sri SHADILAL CJ observed thus:
"The law contemplates two sorts of damages: the 17 one is the pecuniary loss of the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered from part of the assets of the estate.
An illustration may clarify the position X is the income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). XY, i.e., Z is the amount he saves every year. The capitalised value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family though his death. The capitalized value of his income, subject to relevant deductions, would be the loss cause to the estate by his death. If the claimants under both the heads are the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under Section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under Section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under Section 1 they got capitalised value of Y; under Section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income".
"The rights of action under Section 1 and 2 of the Act are quite distinct and independent. If a person 18 taking benefit under both the Sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of personal loss under Section 1 of the Act, the portion shall be excluded in giving compensation under Section 2 and vice versa."
"16. But, what would be the position if the claimant, though a legal heir is not a dependant of the deceased? Obviously, the question of awarding any amount under the head of loss of dependency would not arise, as there was no financial dependency. In fact in this case, the deceased was not even managing the 'house hold' as is normally done by a housewife as the husband and wife were living in different places due to exigencies of service and the couple had no children. In such a case, the main head of compensation will be loss of estate under Section 2 of the Fatal Accidents Act. The claim petition becomes one on behalf of the estate of the deceased and the compensation received becomes part of the assets of the estate. Consequently what is to be awarded under the head of loss of dependency under Section1A would be nil, as there is no real pecuniary loss to the members of the family.
17. In GAMMELL v. WILSON, 1981 (1) ALL ER. 578 the House of Lords held that in addition to the conventional and moderate damages for loss of expectation of life, damages for loss to the estate should include damages for loss of earnings of the lost years. The annual loss to the estate was computed to be the amount that the deceased would have been able to save after meeting the cost of his living and damages for loss to the estate were computed after applying a suitable multiplier to the annual loss. GAMMEL was relied on in SUSAMMA THOMAS(Supra) and by the Madhya Pradesh High 19 Court in Ramesh Chandra v. M. P. STATE ROAD TRANSPORT CORPORATION, 1983 ACC CJ 221".
19. We may summarise the principles enunciated, thus:
(i) The law contemplates two categories of damages on the death of a person. The first is the pecuniary loss sustained by the dependant members of his family as a result of such death. The second is the loss caused to the state of the deceased as a result of such death. In the first category, the action is brought by the legal representatives, as trustees for the dependants beneficially entitled. In the second category, the action is brought by the legal representatives, on behalf of the estate of the deceased and the compensation, when recovered, forms part of the assets of the estate. In the first category of cases, the Tribunal in exercise of power under Section 168 of the Act, can specify the persons to whom compensation should be paid and also specify how it should be distributed(Note: for example, if the dependants of a deceased Hindu are a widow aged 35 years and mother aged 75 years, irrespective of the fact that they succeed equally under Hindu Succession Act, the Tribunal may award a larger share to the widow and a smaller share to the mother, as the widow is likely to live longer). But in the second category of cases, no such adjustments or alteration of share is permissible and the entire amount has to be awarded to the benefit of the estate. Even if the Tribunal wants to specify the sharing of the compensation amount, it may have to divide the amount strictly in accordance with the personal law governing succession, as the amount awarded and recovered forms part of the estate of the deceased.
(ii) Where the claim is by the dependants, the basis for award of compensation is the loss of dependency, that is loss of what was contributed by the deceased to such claimants. A conventional amount is awarded 20 towards loss of expectation of life, under the head of loss to estate.
(iii) Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is the loss of savings by the deceased.
A conventional sum for loss of expectation of life, is added.
(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependants claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.
20. the following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs. 9000/ will bring out the difference between cases where claimants are dependents and cases were claimants are not dependents.
(iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living 21 expenses by each spouse from his/her income will be comparatively higher, that is threeforth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as onefourth( that is 25%), the loss to the estate would be Rs. 2250/ per month or Rs. 27000/ per annum by adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/ Note: The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL (1955(1) Q.B. 349), 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, onethird of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs. 1,000/ per month or Rs. 12,000/ per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services in managing the household) and loss to estate (saving to an extent of onethird of the income that is Rs. 3,000/ per month or Rs. 36000/ per annum). Therefore the loss of dependency would be 12000x14= 168,000/ and loss to estate would be 36000x14= 504,000/. In all Rs.
6,72,000/ will be the compensation.
22.In Keith Rowe vs Prashant Sagar & Ors MAC. APP. No. 601/2007 the Hon'ble High Court of Delhi referred to the decision in A. Manavalagan v. 22 A. Krishnamurthy(supra) and held as under:
10. The learned Tribunal awarded 1/4th of the income of the deceased as loss of estate to the appellant.
However, as per the judgment of Karnataka High Court in the case of A. Manavalagan Vs. A. Krishnamurthy (supra), the loss of estate is to be taken as 1/3 rd of the income of the deceased where the husband and wife are living together. The appellant and the deceased were living together and, therefore, the loss of estate is taken to be 1/3rd of the income of the deceased.
23.The petitioner appeared in the witness box as PW1 and adduced evidence by way of affidavit Ex.PW1/A. The petitioner/PW1 stated in crossexamination that after his marriage he worked for sometime in Nirman Diagnostics Centre at Mumbai and thereafter he shifted to Delhi. The respondents have not adduced any evidence to the effect that the petitioner and deceased were not living together. In view of decision in Keith Rowe vs Prashant Sagar & Ors(supra) the petitioner shall be entitled to loss of estate on account of death of his wife Dr. Harsha Munshi to be taken as 1/3 of income of deceased.
24.In the claim petition petitioner has stated that the deceased was working as radiologist in Diwan Chand Satya Pal Radiological & Imaging Services and was earning a sum of Rs. 80,000/ per month and the deceased was an income tax payee and income tax returns for the assessment year 200506 and 200607 have been filed. A copy of form 16A has been filed as per which the deceased has received a sum of 23 Rs.40,000/ per month from Diwan Chand Satya Pal Radiological & Imaging Services for the months April 2005 to March 2006 except the payment for the month of April 2005 which was paid on 3.5.2005 when deceased received a sum of Rs. 20,000/ and for the month of March 2006 when the deceased received a sum of Rs. 31,768/. Hence as per form 16A for the period from 1.4.2005 to 31.3.2006 the total income of deceased was Rs. 4,98,670/ on which the tax of Rs. 25,432/ was paid i.e. the deceased had earned a sum of Rs. 4,98,67025,432/=Rs. 4,73,238/.
25.The contention of counsel for petitioner is that although the deceased was earning a sum of Rs. 40,000/ per month but prior to that she was earning a sum of Rs. 60,000/ and the payment of Rs. 40,000/ which has been made to her was for performing duty for a half day. It is to be noted that form 16A for the period 1.4.2006 to 31.3.2007 has also been placed on record as per which also the deceased had received a sum of Rs. 40,000/ per month from M/s Diwan Chand Satya Pal Radiological & Imaging Services from 1.5.2006 to 31.1.2007. Hence for the period from 1.4.2005 till her death i.e. 31.1.2007 the deceased was earning a sum of Rs. 40,000/ per month on which appropriate tax was being deducted. The contention of counsel for petitioner is that the actual income of deceased shall be taken as Rs. 80,000/ per month. It is to be noted that 24 there is clear distinction between the income of a person and the potential of a person to earn and the loss accruing on account of loss of income has to be assessed on the basis of actual income of the person and not on the basis of his potential to earn. As per evidence on record the deceased had been earning a sum of Rs. 40,000/ per month since 1.4.2005 i.e., from a substantial period before her death. The petitioner has not proved that deceased was earning an higher amount and the income of deceased had reduced only for a short duration and otherwise she would have been earning a much higher amount. The evidence on record clearly shows that for a period of about 2 years prior to her death the deceased was earning a sum of Rs. 40,000/ per month. Hence it can not be said that deceased was earning a sum of Rs. 80,000/ per month as claimed. The income of deceased shall be taken as Rs. 40,000/ and as per form 16A a sum of Rs. 2040/ was being deducted towards tax. Thus the income of deceased shall be taken as Rs. 40,0002040/= Rs. 37,960/ per month.
26.The contention of counsel for petitioner is that the deceased was offered employments on higher emoluments and her future income is to be considered taking into consideration the said offers which were made to her. The petitioner has relied on one letter dated 10.1.2007 issued by M/s Diwan Chand Satya Pal Radiological & Imaging Services in order to 25 prove that the deceased was offered a consolidated annual salary/ professional fees of Rs. 10,20,000/ as Ex. PW1/9 and also letter dated 15.1.2007 of Dr. Ashok Khurana Ex. PW1/10. The contention of counsel for petitioner is that the said offers were made by M/s Diwan Chand Satya Pal Radiological & Imaging Services for Rs. 10,20,000/ and by Dr. Ashok Khurana for Rs. 1,50,000/. The petitioner has relied on letter dated 10.1.2007 of M/s Diwan Chand Satya Pal Radiological & Imaging Services Ex.PW1/9 and letter dated 15.1.2007 of Dr. Ashok Khurana Ex. PW1/10. PW3 was examined by the petitioner to prove the offer made to deceased vide letter Ex. PW1/9. PW3 stated in the crossexamination that he has not brought document which shows that he was partner of M/s Diwan Chand Satya Pal Radiological & Imaging Services and he has also not brought any original books of accounts in which the salary of deceased was mentioned. PW3 further stated in crossexamination that he does not have any acceptance letter against the offer letter dated 10.1.2007. It is to be noted that the letter dated 10.1.2007 Ex. PW1/9 is in proximity to the date of death of deceased and petitioners have not proved that offer vide Ex. PW1/9 was ever communicated to the deceased and deceased received the said offer against any acknowledgment. No proof of dispatch of letter Ex. PW1/9 has been proved. The petitioner has also not proved that letter Ex. PW1/9 was 26 issued by partner of M/s Diwan Chand Satya Pal Radiological & Imaging Services on the basis of any authority issued by other partners of M/s Diwan Chand Satya Pal Radiological & Imaging Services. It has also not been proved that offer as made vide Ex. PW1/9 was accepted by deceased. In the circumstances it can not be said that deceased would have been employed on the salary/ professional fee of Rs. 10,20,000/ from 1.4.2007. The petitioner has also relied on letter dated 15.1.2007 Ex. PW1/10 of Dr. Ashok Khurana. The date of said letter is also in proximity to the date of death of deceased and no evidence has been placed on record to prove that the said letter was ever put in the course of communication to deceased and the deceased has accepted the said offer made vide letter Ex. PW1/10.
27.Moreover the contention of petitioner is that the deceased on account of higher qualifications was bound to earn much higher amount has been considered by Hon'ble Supreme Court in Sarla Verma and Ors. vs Delhi Transport Corporation and Another (2009) 6 SCC 121 and the Hon'ble Supreme Court has been pleased to hold as under:
12. We extract below the principle laid down in Susamma Thomas(SCC p.177e) "In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death."
"9.The assessment of damages to compensate the dependants is beset with difficulties because from the 27 nature of things, it has to take into account many imponderables, e.g.the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the changes that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
10.The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase."
(SCC pp.18283,paras 910) "13.The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased(or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumedup over the period for which the dependency is expected to last."
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"16.It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period of life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 yearsvirtually adopting a multiplier of 45 and even if onethird or onefourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
28. In Rajesh and others V.Rajbir Singh and others, 2013 ACJ 1403, it has been held by Hon'ble Supreme Court that :
"11.Since the court in Santosh Devi's case, 2012 ACJ 1428(SC), actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma's case, 2009 ACJ 1298(SC) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 percent always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax,if any. Addition should be 30 percent in case the deceased was in the age group of 40 to 50 years."
29.In the circumstances in view of aforesaid discussions the income of 29 deceased shall be taken as Rs. 37,960/. In view of decision in Keith Rowe vs Prashant Sagar & Ors(supra) the petitioner shall be entitled to loss of estate on account of death of his wife Dr. Harsha Munshi to be taken as 1/3 of income of deceased. As per decision in Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra) and Rajesh and others V.Rajbir Singh and others(supra) there is an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years of age. After addition of 50% the income of the deceased comes to Rs. (i.e. 1/3 of Rs.37960/=12653.33/ which may be rounded as of Rs. 12654/ +50% of Rs.12654/)=Rs. 18,981/ per month.
30.In Keith Rowe vs Prashant Sagar & Ors(supra) the Hon'ble High Court of Delhi held that:
11.The learned Tribunal has applied the multiplier of 12.
The deceased was aged 31 years at the time of the accident whereas the appellant was aged 38 years at the time of the accident. The appropriate multiplier according to the age of the appellant is 15 according to the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (supra). The multiplier is, therefore, enhanced from 12 to 15.
31. The petitioner has filed on record the copy of his passport as per which his date of birth is 18.12.1970. Hence the petitioner had completed 36 years of age on the date of death of deceased and the appropriate multiplier applicable according to the age of petitioner as per decision in 30 Sarla Verma and Ors. vs Delhi Transport Corporation and Another (supra) is of 15. The total loss of estate is computed to be Rs. 18981x12x15=Rs.34,16,580/. In view of judgment in Rajesh and others V.Rajbir Singh and others(supra) petitioner is also awarded Rs.10,000/for loss of love and affection and Rs.1,00,000/ for loss of consortium and Rs.25,000/ for funeral expenses. The total compensation is determined as under:
Loss of Estate : Rs. 34,16,580/
Love and Affection : Rs. 10,000/
Funeral Expenses : Rs. 25,000/
Loss of Consortium : Rs. 1,00,000/
Total : Rs.35,51,580/
RELIEF:
32.The petitioner is thus awarded a sum of Rs. 35,51,580/ (Rs. Thirty Five Lacs Fifty One Thousand Five Hundred Eighty only) alongwith interest at the rate of 7.5% per annum in view of judgment of Hon'ble Supreme Court in Rajesh and others V.Rajbir Singh and others(supra) from the date of filing of petition till its realisation including, interim award, if any already passed in favour of the petitioner against the respondents. The liability of all the respondents being joint and several.
33.For safeguarding the compensation amount from being frittered away by the claimants, directions have been given by Hon'ble Supreme Court for 31 preserving the award amount in the case of Jai Prakash Vs. National Insurance Co. Ltd. and Others (2010) 2 Supreme Court Cases 607. In view of the directions contained in the above judgments the award amount is to be disbursed as follows:
34. 10% of the award amount be released to petitioner by transferring it into his savings account and remaining amount be kept in FDR in UCO Bank, Patiala House court Branch, New Delhi in following manner:
1. Fixed deposit in respect of 10% for a period of one year.
2. Fixed deposit in respect of 10% for a period of two years.
3. Fixed deposit in respect of 10% for a period of three years.
4. Fixed deposit in respect of 10% for a period of four years.
5. Fixed deposit in respect of 10% for a period of five years.
6. Fixed deposit in respect of 10% for a period of six years.
7. Fixed deposit in respect of 10% for a period of seven years.
8. Fixed deposit in respect of 10% for a period of eight years.
9. Fixed deposit in respect of 10% for a period of nine years.
35.The cheque be deposited in UCO Bank, Patiala House Court Branch in the name of UCO Bank, A/c Dr. Mihir Shreyas Munshi.
36.The interest on the fixed deposits shall be paid monthly by automatic credit in the saving accounts of the claimants/beneficiary.
37.Original fixed deposit receipt shall be retained by the Bank in safe 32 custody. However, the original pass book shall be given to the claimants along with the photocopy of the FDR. Upon the expiry of period of FDR the bank shall automatically credit the maturity amount in the saving account of beneficiary.
38.The original fixed deposit receipt shall be handed over to the claimants at the end of the fixed deposit period and shall automatically credit the maturity amount in the savings account of the beneficiary.
39.No cheque book shall be issued to the claimants without permission of the court. No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the court.
40.Withdrawal from the aforesaid accounts shall be permitted to the beneficiary after due verification and the Bank shall issue photo identity card to the beneficiary to facilitate identity.
41.Bank shall transfer Savings Account to any other Bank/Branch according to his convenience.
42.The beneficiary shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit to Senior Manager of UCO Bank, Patiala House Court, New Delhi.
43.Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself.
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44.The respondents no.1 and 2 shall deposit the award amount directly in bank account of the claimant at UCO Bank,Patiala House Court,New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
45.The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners shall also file the proof of residence and furnish the details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount.
46.The respondents no. 1 and 2 shall deposit the award amount alongwith interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court alongwith proof of deposit of award amount, the notice of deposit and the calculation of interest on 30.5.2014.
APPORTIONMENT OF LIABILITY:
47.The offending vehicle was owned by respondents no. 1 and 2 and was being driven by respondent no. 3. Thus all the respondents are held 34 jointly and severally liable. Respondent no.1 and 2 being owners of the vehicle are vicariously liable for the act of driver/respondent no.3. Respondents no. 1 and 2 being the owners are directed to deposit the award amount within 30 days with interest @ 7.5% per annum from the date of filing of petition till its realisation. In case of any delay, it is liable to pay interest @ 12% per annum for the period of delay. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. An attested copy of award be given to the parties(free of cost). File be consigned to Record Room.
Announced in the open court (Harish Dudani) on 01.3.2014 Judge: MACT1 : New Delhi