Delhi District Court
Shri Satya Prakash Bansal vs Shri Narendra Kumar on 11 November, 2019
DLCT010002972007
IN THE COURT OF SH. SANJEEV KUMAR-I
ADDITIONAL DISTRICT JUDGE-12, CENTRAL,
TIS HAZARI COURTS, DELHI
CSDJ No.613520/16
1. Shri Satya Prakash Bansal
S/o Late Shri Rameshwar Dass Bansal
2. Shri Hitesh Bansal
S/o Shri Satya Parkash Bansal
3. Shri Manish Bansal
S/o Shri Satya Parkash Bansal
All R/o B-4/131,
Yamuna Vihar, Delhi-110053. ...Plaintiff
Versus
1. Shri Narendra Kumar
S/o Shri Malik Chand,
R/o 7/24-A, Double Storey,
Vijay Nagar, Delhi-110009.
2. Shri Lalit Kohli
S/o Shri Bhag Chand,
R/o L-234, J.J. Colony,
Wazirpur, Delhi.
3. Shri Akram,
S/o Shri Najakat Ali,
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 1 of 49
R/o 107, Pocket-14, Sector 5-A,
DDA Flats, Narela, Delhi.
4. Shri Raj Kumar,
R/o Qr.No.13, Block 12,
MCD Colony, Model Town,
Delhi.
5. Secretary,
Ministry of Home Affairs,
Government of India, North Block,
Central Secretariat, New Delhi.
6. Chief Secretary,
Government of National Capital Territory of Delhi,
Yamuna Velodrome, I.P. Estate,
New Delhi.
7. Municipal Corporation of Delhi,
(through Commissioner), Town Hall,
Chandni Chowk, Delhi.
8. Commissioner of Police,
Police Headquarters,
I.P. Estate, New Delhi.
9. The Station House Officer,
Police Station,
Maurice Nagar,
Delhi-110009. ...Defendants
Date of institution : 02.05.2007
Date of reserving order : 06.11.2019
Date of decision : 11.11.2019
SUIT FOR DAMAGES
JUDGMENT
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 2 of 49
1. Vide this judgment, I shall decide the suit for damages for a sum of Rs.18,05,182/- along with interest filed by the plaintiff.
2. Brief facts as stated by the plaintiff are that Smt. Saroj Bansal (hereinafter called as deceased) wife of plaintiff no.1 and mother of plaintiff no.2 and 3 was working as a Professional Assistant with school of learning, University of Delhi and was drawing salary of Rs.19,978/- p.m. On 08.08.2006 at about 5.00 PM when she was returning back from her duty and was crossing Mall Road near Metro Station, Delhi University with her follow female workers, two racing mares hit her badly and she died on the spot. Said mares were riding by defendants no.2 and 3 who were under the control of defendants no.1 and 4, the owners of the mares. Deft no.2 was chased by an onlooker/ eye witness on his motor cycle and and was caught and was handed over to the police of PS Mourice Nagar and FIR No.110/06 dated 08.08.06 was registered in PS Maurice Nagar U/s 279/289/304/304A IPC. It is further averred that the unlawful act of racing mares was prohibited as per orders of defendants no. 5 to 9. Keeping of mares etc., in living area is prohibited by defendant no.7 who is working under the control of defendant no. 5 and 6. Offence and CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 3 of 49 loss occurred in the area of defendant no.8 who is working under the control of defendant no.9 the Chief Officer of the Police.
3. It is further averred that deceased was working and if she would have survived till date of superannuation she would have deceased Smt. Saroj Bansal reduce the pay packet which she was carrying home and other service benefits and the plaintiff no.1 has lost her company which he needed in his old age and plaintiffs no.2 and 3 have been deprived of their motherly care and guiding light and thus claimed Rs.18,02,982/- as compensation (which include Rs. 294454/- as difference of pay upto 31.03.2008, Rs. 658258/- as difference of pension including subsequent benefits along with interest and Rs. 850000/- as loss to families). In this respect notice dt. 10.10.2006 was sent to the defendants which was neither replied nor complied by them.
4. Joint written statement was filed by defendants no.1, 2 and 3 in which they have denied the contents of the plaint as incorrect. It is denied for want to knowledge that on 08.08.2006, the deceased was crossing road at the alleged time or place and was hit by two racing mares due to which she died on the spot. It is CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 4 of 49 averred that story of plaintiff is contradictory not only to its own story but also with FIR. It is further averred that the riding of the horse/ mare is prohibited by the defendants no.5 to 9 or that keeping of the livestock is prohibited in the living areas. Further it is stated that defendant no.3 does not even know the horse riding and he was not having/ riding any mare on the alleged date and time and said defendant does not have any nexus with defendant no.4. It is averred by them that defendant no.1 gives the mares on hire for marriage and other functions and the said defendant received a telephonic call on or about 6 PM from the local police station at Maurice Nagar for sending a mare for a marriage function of some relative of the concerned SHO. On being asked, the defendant no.1 send the defendant no.2 with the mare to the police station. The defendant no.2 reached at the police station at about 6.30 PM and surprisingly found the plaintiff no.1 already present there in the police station and immediately on arrival of the defendant no.2 with mare, the police officials seized the mare and arrested the defendant no.2 without disclosing the fault and guilt of the defendant no.2. It is also denied by defendants no.2 and 3 that they were riding the alleged mares or instigating them for race/ run CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 5 of 49 fast or that responsible for the untimely death of the deceased and thus they claimed that the plaintiffs are not entitled to any compensation and prayed for dismissal of the suit.
5. In the written statement filed on behalf of defendant no.4 also the contents of the plaint were denied. It is denied for want to knowledge that on 08.08.2006, that the deceased was crossing road at the alleged time or place and was hit by two racing mares due to which she died on the spot. It is denied by defendant no.4 that deceased died due to any vicarious acts of defendant no.4 or that the mares were being ridden by the defendants no.2 and 3 under the control of at least the defendant no.4. It is stated that the story of the plaintiffs is contradictory to his own pleadings and FIR as on the one hand plaintiff has alleged the death by 'road rage' and on the other hand alleging the same 'hit by mares'. It is further stated that as per own allegations of the plaintiffs, the erring defendants no.2 and 3 were riding the horse in negligent manner and beyond the discharge of their duties and thus the same hardly attracts the concept of the vicarious liability qua the defendant no.4. Further it is denied that the riding of the horse/ mare is prohibited by defendants no.5 to 9 or that keeping CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 6 of 49 the livestock is prohibited and the defendant no.4 has prayed for dismissal of the suit qua defendant no.4.
6. Defendants no.5, 8 and 9 filed joint written statement in which they have stated that as per records of the defendants, on 08.08.2006 at about 5 PM, the deceased Smt. Saroj Bansal who was working as Professional Assistant with School of Learning was crossing the Mall Road near Delhi University Metro Station and at that time two mare riders namely Lalit Kohli and Akram were riding their mares from Kingsway Camp to Timarpur side rashly and negligently trying to overtake each other and due to overtaking one mare rider Akram hit Smt. Saroj Bansal who fell on the ring road. At the same time, the second mare rider Lalit Koli also hit the injured Smt. Saroj Bansal who was lying on the road whereas both the riders ran away and one eye witness Mr. Mangal Dass chased the second mare rider on his motor-cycle and caught him and handed over to the local police of PS Maurice Nagar. The victim was taken to hospital where she expired and an FIR No.110/06 U/s 279/289/304A IPC was registered at PS Maurice Nagar and chargesheet under the same provisions was filed in the Court and further stated that one Mr. Narender Kumar S/o Shri Malik Chand CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 7 of 49 was the owner of the mares and both the accused were his employees. However it is denied by them that they are liable to pay any compensation.
7. In the written statement filed by the MCD/ defendant no.7, it is stated that the defendant is taking action at the department and zonal level against the stray animals since long and impounding the roaming animals including Donkey, Horse and other. Cattle are being impounded in the grass less which is under control of Govt. of NCT Delhi after proper tagging on them at Timarpur cattle pound. Donkeys, horses, buffaloes etc. are being auctioned at cattle pound Timarpur under the supervision of anotion board consisting of Deputy Commissioner of civil line zone, veterinary officer from NCT of Delhi and this practice is going on and the Hon'ble High Court of Delhi has been apprised regularly in court matter "Common cause Vs. Union of India & Ors.' in CWP 3791/2000.
Further it is averred that on 08.08.2006 the two racing mares were moving on Mall Road near Metro Station Delhi University they hit the deceased Saroj Bansal and due to said CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 8 of 49 accident she died. Therefore it is negligence of mare riders/ owners for the death of deceased Saroj Bansal. It is further averred that if the rider of said mares moving on road & going on religious wedding purposes then MCD cant take any action against such type of mares using in wedding purpose as the MCD does not have the policy to take action against such types of mares/ elephants used in religious purposes in Delhi so the compensation/ damages can be charged from the riders/ owners of mares and not from MCD.
8. No written statement was filed by defendant no.6.
9. The plaintiffs have filed separate replication qua the WS file by the defendants in which they denied the contents of the written statements as incorrect and reiterated the contents of the plaint as true and correct.
10. From the pleadings of the parties, the following issues were framed on 14.01.2010:-
1) Whether plaintiff has suffered any loss or injury on account of negligence on the part of any of the defendants? If so, which of the defendant is CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 9 of 49 responsible for such negligence? OPP
2) Whether plaintiff is entitled for the compensation as claimed? If so, to what amount and against which of the defendant? OPP
3) Relief
11. In order to prove its case, plaintiff no.1 has examined himself as PW1; Sh.Pradeep Kumar Bajpayee, Sr. Assistant, School of Open Learning as PW2; ASI Jagat Singh also as PW2; HC Fakir Chand as PW3; Sh.Deepak, Asstt. Ahlmad as PW4 and Sh. Mangal Dass as PW5.
12. On the other hand, defendant no.1 has examined himself as D1W1; defendant no.2 has examined himself as D2W1; defendant no.3 has examined himself as D3W1; defendant no.4 has examined himself as D4W1 and defendant no.7 has examined Dr. Jagvir Singh, Dy. Director (VS) as DW7.
13. Arguments were heard from Ld.Counsel for the plaintiffs as well as from Ld. Counsel for the defendants. CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 10 of 49
14. I have considered the submissions and gone through the records. My issuewise findings are as under:-
ISSUE NO.1 "Whether plaintiff has suffered any loss or injury on account of negligence on the part of any of the defendants? If so, which of the defendant is responsible for such negligence?
OPP"
15. The onus to prove this issue is upon the plaintiff. In order to prove its case, as stated above, plaintiffs have examined 06 witnesses. Plaintiff no.1 has examined himself as PW1 and led his evidence by way of affidavit Ex.PW1/X wherein he has almost deposed the same facts as stated by him in the plaint, therefore same are not repeated here. He has relied upon following documents:-
(i) Copy of identity card of his deceased wife as
Ex.PW1/1.
(ii) Copy of report of Trauma Center (Colly) as Ex.PW1/2.
(iii) FIR lodged with PS Maurice Nagar as Ex.PW1/3. CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 11 of 49
(iv) Copy of Postmortem report as Ex.PW1/4.
(v) Cuttings from various newspapers Ex.PW1/5 (Colly).
(vi) Copy of complaint to SHO, Maurice Nagar and DCP concerned as Ex.PW1/6 (Colly).
(vii) Papers related to his heart ailment as Ex.PW1/7.
(viii) Summary of losses due to demise of Smt. Saroj Bansal is Ex.PW1/8.
(ix) Copy of notice sent to defendants as Ex.PW1/9.
(x) Postal receipts and certificates of posting in respect of Ex.PW1/8 are Ex.PW1/10 (Colly).
16. In his cross-examination by defendant no.1, 2 and 3, he deposed that he was working as Section Officer in DVB and took VRS on 31.10.03. He received service benefit to the tune of Rs.15 lakhs on his VRS. He has two sons namely Hitesh Bansal and Manish Bansal. On 08.08.2006 at about 5.00 pm, he was at his residence. Sh. Madan Lal, Librarian who is in the office of his wife which is School of Open Learning, University of Delhi informed him at about 5.00/5.15 pm that his wife has met with an accident. Even on coming to know about the accident, he did not CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 12 of 49 go to site. When he was going to the spot he again received call from Sh.Madan Lal, Librarian to reach at the Trauma Centre. He never visited the site where the alleged incident took place. It is correct that the incident did not take place in his presence. He came to know about the owner of the rider of mares from the contents of the FIR. He has no personal knowledge about the accident. The statement of Sh.Madan Lal was recorded by the police in my presence. Sh. Madan Lal was on leave on that day who informed him about the incident. He denied the suggestion that he do not know anything about the incidence and the contents of his affidavit are false and irrelevant being based on ear say evidence. He denied the suggestion that defendants no.1, 2 and 3 have been falsely implicated.
17. In his cross-examination done by defendant no.4, he admitted that he was not at the spot at the time of accident. The owner of mares in FIR was mentioned as defendant no.1 Sh.Narinder Kumar. He do not know which mare hit his wife first and which later.
18. From the testimony of PW1 it is evident that he was CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 13 of 49 not the eye witness of the incident hence his testimony is not helpful to prove the negligence of the defendants and merely corroborating in nature which only prove that deceased died due to the accident.
19. PW2 Sh. Pradeep Kumar Bajpayee, Sr. Assistant from the School of Open Learning, University of Delhi has brought the service book, summary of service of deceased regarding salary paid to her in harness and that would have been paid had she survived. He proved the photocopy of I-card of Smt. Saroj Bansal already Ex.PW1/1, payments made after the demise of Smt. Saroj Bansal as Ex.PW2/1 and the payment which the deceased would have been paid had she survived as Ex.PW2/2. He deposed that Ex.PW2/1 and Ex.PW2/2 are prepared by their Accounts Department.
In cross-examination, he deposed that he has been working in this department for the last about 20 years and have no personal knowledge about the facts of the present case. Hence this witness is only prove about the salary of the deceased and not about the incident.
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 14 of 49
20. ASI Jagat Singh, IC Record Room, Model Town-II, New Delhi has also been examined as PW2. He deposed that the summoned record has been destroyed. Hence he is a formal witness only.
21. PW3 HC Fakir Chand, PS Maurice Nagar has proved the copy of FIR No.110/06 U/s 279/289/304 IPC as Ex.PW3/1. Hence he is also a formal witness.
22. PW4 Sh. Deepak, Asstt. Ahlmad in the Court of Sh.Devender Nain, Ld. MM, North District, Delhi has produced the case file pertains to FIR No.110/06 and from which copy of the FIR Ex.PW3/1 was compared. He deposed that Ex.PW3/1 is the computerized copy of the FIR and same is correct as per the record. The criminal case of FIR No.110/06 is still pending in the Court. Hence this witness is also a formal witness.
23. PW5 Sh. Mangal Dass has led his evidence by way of affidavit Ex.PW5/A wherein he has deposed that he is a contractor and at about 5.00 PM on 08.08.2006 he was on his motor bike and CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 15 of 49 going towards Subzi Mandi, Malka Ganj via Mall Road outside University of Delhi and on that day two mares were racing at the relevant time when one mare rider hit Smt. Saroj Bansal. His statement was recorded by police as PW1/4. He further deposed that after hitting Smt. Saroj Bansal they ran away. He had seen the mare rider hitting said lady who fell flat on the road with her head down and face up. After the first mare, another mare rider came and also trampled Smt. Saroj Bansal and thereafter ran away. He was on his motor bike and could not catch the first mare and follow him but he catch the second mare rider near Bonta Park, near Hindu College, University of Delhi and took him to the PS Maurice Nagar at the back of his motor cycle. The police recorded his statement thereafter he left. His supplementary statement is PW4/3. He came to know that Raj Kumar, one of the mare owner is son-in-law of Narender Kumar. That it has also came to his knowledge that Raj Kumar is having his shop in Gur Mandi, Delhi and books mares of Raj Kumar for marriages etc. In his cross-examination, he stated that at the time of incident the victim was along with two other ladies who were behind her. The incident took place in his presence. The first CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 16 of 49 horse rider hit the lady at zebra crossing and the another horse rider coming behind trampled the other lady. He was standing at red light and both horse riders jumped the red light. After the incident, he stayed only at the spot and thereafter chased the horse riders but both the riders were not caught, however last rider was caught and he took the rider to the PS. Police recorded his statement twice.
24. On the other hand, in order to prove his case, defendant no.1 has examined himself as D1W1 and led his evidence by way of affidavit Ex.D1W1/X. He has deposed that he has no concern or nexus with the death in question. Further it is deposed that as per own allegations of the plaintiff the deceased died for want of prompt and due medical aid and treatment and thus he cannot made scape goat. He further denied that the deceased was crossing the road on 08.08.2006 and died due to road rage or hit by the defendants no.2 and 3 or that they were riding the house in negligent manner and thus he held vicariously liable. He further deposed that he even does not know defendant no.3. He further deposed that he gives the mare on hire for marriage and other functions. He received a telephone call on or CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 17 of 49 about 6 PM from the local police station of Maurice Nagar for sending a mare for marriage function of some relative of the concerned SHO. On being asked the sending point, the police officer asked to send a mare at police station and further saying that someone from the police station would accompany the person. He without sensing any rot, while taking the same to be a usual call, from the police station for obliging them, sent the defendant no.2 with the mare to the police station. After about one hour, the defendant no.2 made call on his telephone and he was informed that he was involved in a police case and also seized the mare and arrested him without disclosing the fault or guilt on his part. Thereafter he immediately rushed to the police station to inquire about it. Later on he realized the ill and highhanded acts of the police officials who in collusion and connivance with the plaintiff was already present there and pressurized him in order to teach a lesson as on an earlier occasion he refused to oblige the police official by sending the mare without hire charges.
In his cross-examination, he has stated that defendant no.4 Raj Kumar is his son-in-law who supplies band in marriage while he supplies mares. In August 2006 he used to give mares in CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 18 of 49 marriages. He admitted that defendant no.4 has his office in Gurmandi. He denied the suggestion that on 08.08.2006 at about 5.00 PM, his two employees Lalit Kohli and Akram were racing the mares near metro station Mall Road and volunteered that Lalit Kohil is his employee while Akram is not his employee. He denied the suggestion that Akram is his employee. He denied the suggestion that on 08.08.2006 at about 5.00 PM, Akram while racing the mare has struck against a lady namely Saroj wife of plaintiff no.1 near metro station Mall Road and thereafter he fled away from the spot and volunteered that said mares were not for racing. He cannot say that another rider Lalit Kohli ran over the lady who fell down and died at the spot. He stated that on 08.08.06 at about 7.00 pm, he received a telephone call from the PS Maurice Nagar and thereafter he went to PS Maurice Nagar and volunteered that he sent mare with Lalit Kohli on the asking of SHO Maurice Nagar for some marriage function at about 6.15 PM. When he reached there, Mangal Sain was not present but his employee Lalit Kohli was present there. He admitted that on 08.08.2006 his mare was taken into custody and a case was registered against Lalit Kohli and volunteered that it was a false CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 19 of 49 case. On 29.08.2006, he, Akram and his another mare were called upon to be present in police station and they went there. He admitted that the another mare was also taken into custody by the police and a case was registered against Akram. He took both the mares on superdari as owner. He stated that Akram is not a rider but he is a rickshaw puller and at the time of requirement, they called him for help on daily wages for taking flower vases, to carry goods in a rickshaw and to carry lamp on shoulder at marriage function. He denied the suggestion that Akram knows riding. He stated that he do not maintain record for sending the mares. He do not have license to keep the mares at the place where they are stabled. He denied the suggestion that on 08.08.2006 his mares went away from his place via Metro Station Mall Road towards Maurice Nagar and volunteered that only one mare went like this. He denied the suggestion that two mares went like this at about 5.00 pm and volunteered that only single mare was involved accordingly but at 6.15 pm. He denied the suggestion that he is responsible to compensate towards death of plaintiff's wife as his mares were involved or that his employee Akram and Lalit Kohli on 08.08.2006 took out mares CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 20 of 49 with his permission and hit plaintiff's wife.
25. Defendant no.2 Lalit Kohli examined himself as D2W1 and led his evidence by way of affidavit Ex.D2W1/X1. He in his examination in chief has stated that on 08.08.2006 at about 6.15 PM, he was called by Sh.Narinder Kumar and asked to bring one mare for a marriage function of some relative of the SHO, PS Maurice Nagar and further asked him that someone from the police station would accompany him fetching the house to the nearby locality. He reached the PS Maurice Nagar at about 6.30 PM and surprisingly found that the plaintiff already present there in the police station and immediately on his arrival with the mare, the police officials seized the mare and arrested him. He further deposed that he and Akram had no race of the mares on the alleged date or time and specifically denied that the deceased died due to alleged road rage or hit by them. He further deposed that the Court of Sh. Harun Pratap, the then Metropolitan Magistrate-01 (Central), Tis Hazari Court, Delhi vide its judgment dated 28.02.2015 acquitted him from the offences as made in FIR No.110/06, PS Maurice Nagar. He has relied upon the certified copy of the judgment as Ex.D2W1/1.
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 21 of 49 In his cross-examination, he deposed that he is working with Sh.Narender Kumar for the last 15-16 years and he was a jockey/ rider. He do not know Sh.Akram and also if Akram works for Sh.Narender Kumar. He used to take out the mares of Narender Kumar on marriages etc. On 08.08.2006 also he took the mare but he do not have the slip with him and though it is always given to him. He do not know how many mares Sh.Narender Kumar was having in the year 2006. He denied the suggestion that on 08.08.2006 he along with Akram was organizing mares race at Mall Road and volunteered that he never went there. He denied the suggestion that he went along with mares from Mall Road to Maurice Nagar. He denied the suggestion that 08.08.2006 at 5.00 PM first Akram hit wife of the plaintiff and then he trampled her by his mare and she died or he ran away from the spot but was caught by a chase by Mangal Singh on his motor bike who brought him to the PS Maurice Nagar and then he called defendant no.1. He stated that Sh. Narender Kumar came there only after telephone by police. He do not know if Sh.Akram is also an accused in the criminal case registered qua this incident. He stated that he attended proceedings in criminal case but not with Akram. CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 22 of 49
26. Defendant no.3 Akram examined himself as D3W1. In his evidence led by way of affidavit Ex.D3W1/X2 he denied that the deceased died due to alleged road rage or hit by him on the date, time and place mentioned by the plaintiff in the plaint. He stated that he do not know horse riding. He has stated that on or about 13/14.08.2006, a police constable came at his residence and brought him to the police station Maurice Nagar to inquire about the incident took place on 08.08.2006 and thereafter the police officials involved him in a false case bearing FIR No.110/06 PS Maurice Nagar titled as 'State Vs. Lalit Kohli'. However, the Hon'ble Court of Sh.Harun Pratap, the then Ld. MM-01 (Central), Tis Hazari Court acquitted him vide judgment dated 28.02.2015, the certified copy of which is already Ex.D2W1/1. He further stated that plaintiff has falsely alleged in the plaint that the deceased died due to alleged road rage or hit by him and the defendant no.2.
In his cross-examination, he stated that he know Sh.Narender Kumar, defendant no.1 for the last 13-14 years. Sh.Narender Kumar deals only in light and he used to carry his lights in marriages etc. He do not know as to whether Narender CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 23 of 49 Kumar deals in providing mares on marriages and band. He do not know Lalit Kohli. He admitted that he and Lalit Kohli involved in a police case of PS Maurice Nagar bearing FIR No.110/06. He do not know whether any mare was taken into custody by police in his presence. Sh.Narender Kumar stood surety for him. He denied the suggestion that he is a horse rider. He denied the suggestion that on 08.08.2006 around 5.00 PM, he was riding on mare and passed through Metro Station, Mall Road and he and Lalit Kohli had bet in a race for money. He denied the suggestion that he trampled a lady coming from other side on zebra crossing and did not stop. He admitted the suggestion that a criminal case was registered against him and Lalit Kohli.
27. Defendant no.4 Raj Kumar has examined himself as DW4. In his evidence led by way of affidavit Ex.DW4/A he deposed that he is running a mare business of providing band etc. He further deposed that plaintiff has no locus standi to file the present suit as neither he has any mare nor he has any nexus with the alleged mischief or cause of death of the deceased and further deposed that post-mortem report hardly proves the nexus between the alleged crime and injuries and even cause of death. He CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 24 of 49 deposed that Sh. Mangal Dass was star witness in the criminal case and the Ld. MM has acquitted the defendants no.2 and 3 as the rashness and negligence could not be proved against them.
In his cross-examination, he has stated that defendant no.1 is his father-in-law who is doing work of letting out mares in marriages etc. from Gudmandi, Delhi. He do not have any mare therefore there is no question of stabling them arise. He is doing business of band-baja only. He cannot say if the deceased wife did not receive prompt medical aid, resulting in her death as he was not aware of the same.
28. DW7 Dr. Jagvir Singh, Deputy Director (VS) who appeared on behalf of defendant no.7/ NDMC has deposed that NDMC, at the department and zonal level is taking action against the stray animals since long and are impounding the roaming animals which are thereafter being put in the gowshala/ gowshodan which is under control of Govt. of NCT of Delhi, after proper tagging of them at Timarpur Cattle pound and Donkeys, Horses, Buffaloes etc. are being auctioned at cattle pound Timarpur under the supervision of Auction Board which was CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 25 of 49 constituted by the competent authority from the H.Q. level. He further deposed that action against the roaming animals in entire Delhi is going on under the direction of the Hon'ble High Court of Delhi and the Hon'ble High Court has been apprised regularly in court matter "Common Cause Vs. Union of India & Ors." in CWP No.3791 of 2000. But on 08.08.2006 two racing mares allegedly moving on the Mall Road near Metro Station Delhi University. The said mares were allegedly to be used for religious wedding purposes. They allegedly hit Smt. Saroj Bansal and due to said accident she died. The NDMC cannot take any action against such type of private mares being used by their owners in wedding/ social religious purposes. As such the compensation/ damages, if any may be charged from the riders/ owners of mares and not from NDMC.
In his cross-examination, he deposed that the horse and mare were permitted to be kept in the municipal area and municipal corporation used to issue license for them. He can produce the slip which is given by department for permitting the horse and mare. Photocopies of the same is produced which are Ex.DW7/P2 to Ex.DW7/P5. The said receipts are issued by the CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 26 of 49 general branch of the Civil Lines Zone of MCD. He had not verified the genuineness of Ex.DW7/P2 to Ex.DW7/P5. He do not know whether the license has been issued to those persons whose receipts have been filed by him today. He stated that said receipts were not issued by the veterinary department. He had gone through the file of the department pertaining to this case. He do not know whether the defendant no.1 and 4 has any receipt/ permission to keep mare in his house. Official of the MCD has inspected the house of the defendant no.1 and 4 and found mare in the said house. The concerned officials also recorded the statement of defendant no.1 in this regard and the statement is produced which is Ex.DW7/P6. He do not know how many mares were found during inspection as he did not personally visited the site. He do not know whether the mares found at the house of defendant no.1 were without license or not or whether the same were impounded or not or that same were used for marriage purpose or not on the date of occurrence i.e. 08.08.2006. He stated that there is no permission for racing of the horse/ mares on the public road. He admitted the suggestion that Smt. Saroj Bansal, wife of the plaintiff no.1 died due to the accident caused by CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 27 of 49 the mares on 08.08.2006. He do not know on 08.08.2006 at the relevant time of accident the mares which caused the accident were being used for marriage purpose or any religious purpose. Further no action was taken by the department against the owners of the mares. He cannot say whether the notice Ex.PW1/9 was received in the office of MCD or not or that same was forwarded to Veterinary department for action or not. He admitted the suggestion that the said notice is in the municipal file which he has brought today.
29. On analyzing the testimony of both plaintiffs and defendants, I found that there is only one eye witness of the incident i.e. PW5 Mangal Dass. From the testimony of PW5 Sh. Mangal Dass, it is proved that on 08.08.2006 at about 5.00 PM, when he was at Mall Road, University of Delhi he saw two mare were racing and one mare rider hit Smt.Saroj Bansal (wife of plaintiff no.1 and mother of plaintiffs no.2 and 3) while she was crossing the road and was on the midway of the road and thereafter second mare rider also hit her due to which she fell down on the road and thereafter he follow the mare riders on his motorbike and caught one mare rider and handed over him to the CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 28 of 49 police station Maurice Nagar and their police recorded his statement and lodged an FIR No.110/06 Ex.PW1/3. From perusal of the FIR Ex.PW1/3 also it is evident that same was registered on the statement of PW5 and in the FIR it is also mentioned that the person who got hold by Mangal Dass was Lalit Kohli, defendant no.2. Further from the FIR it is also proved that Smt. Saroj Bansal was admitted in the Trauma Center where doctor had declared her brought dead. From the post-mortem report of the deceased Smt. Saroj Bansal bearing no.1249/2006 dated 09.08.2006 Ex.PW1/4, it is also evident that the alleged history of death is that the deceased was hit by two horses on road and that the cause of death is Cranio Cerebral damage consequent to blunt force impact to the head and further it is opined that all injuries are antemortem in nature, fresh duration and caused by blunt object/ surface impact and the findings are consistent with alleged history. Thus the post-mortem report of the deceased Smt. Saroj Bansal corroborate with the reason of death given by the PW5 in his testimony and the FIR Ex.PW1/3.
PW5 has deposed in his cross-examination that on the day of incident he was coming from Shalimar Bagh through his CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 29 of 49 office at Rohini to come at Subzi Mandi and saw the incident. The first horse rider hit the lady at zebra crossing and the another horse rider coming behind trampled the other lady and he chased the horse rider and he caught the last rider and took him to the police station and police recorded his statement and registered the FIR.
30. Testimony of PW5 is duly corroborated by the FIR No.110/06 which has been lodged on his statement. Further in post mortem report EXPW1/4 it is mention in the history of incident that decased was taken to Susrut trauma center on 08.08.06 with alleged history of being hit by horse on road. Further as per PM report cause of death of deceased Saroj Bansal was cranio cerebral damage consequent to blunt force impact to the head and injuries were anti mortam in nature caused by blunt object/ surface impact and injuries were constant with the alleged history. Hence post mortam report also cooroborate the testimony of PW5.
31. PW5 has categorically deposed that he has no relation with the plaintiffs and he do not know plaintiffs, therefore he was CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 30 of 49 an independent witness and has no reason to dispose falsely. Hence, nothing much has came out in his cross-examination to disbelieve his testimony, hence from the testimony of PW5 it is proved that the death of Smt. Saroj Bansal was caused due to the rash and negligent act of the mare riders who hit Smt. Saroj Bansal while she was crossing the road and one of the rider of mare was defendant no.2 Lalit Kohli.
32. Further plaintiff/ PW1 in his testimony has proved the newspaper cutting of Punjab Kesari, Jagran and Navbharat Times dated 10.08.2006 Ex.PW1/5 collectively in which also the incident of hitting of Smt. Saroj Bansal by two mare riders and the arrest of one mare rider Lalit Kohli is reported. Though newspaper cutting are not itself a proof of the happening of the incident but in my view same can be used as a corroborating evidence in support of the testimony of PW5 that the incident was happened on 08.08.2006 and defendant no.2 Lalit Kohli was arrested.
33. I am not agree with the contention of Ld. Counsel for the defendants no.1 to 4 that since the Ld. MM who tried both defendants no.2 and 3 U/s 279/289/304 IPC in FIR No.110/06 and CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 31 of 49 acquitted them, therefore the defendants no.2 and 3 have not caused the accident in which wife of plaintiff no.1 and mother of plaintiff no.2 and 3 died. It is settled law that the rule of appreciation of the evidence are different in a criminal trial and a civil case because while in a criminal case the rule of beyond doubt is applied and in the case of civil nature the rule of preponderance of probability is followed. Therefore I held that from the testimony of PW5 at least it is proved that Smt. Saroj Bansal was hit by two mare riders on 08.08.2006 out of which one he caught i.e. defendant no.2 Lalit Kohli whereas other mare rider managed to run and from his testimony the negligency of both mare riders also proved though it is yet to be proved that the other mare rider was defendant no.3 Akram or not.
34. From the judgment Ex.D2W1/1 (Collectively) it is evident that there were two accused in the FIR no.110/06 i.e. Lalit Kohli and Akram but the PW5 Mangal Dass has only identified Lalit Kohli which is quite nature because he has caught apprehended Lalit Kohli, defendant no.2 only and not the other mare rider. Admittedly, except PW5 no other person was the eye witness of the incident and he has not deposed that he saw the other mare CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 32 of 49 rider, therefore their testimonies are not helpful in proving that defendant no.3 Akram was the second mare rider who caused the accident. However, admittedly Akram was the accused in the criminal case FIR No.110/06. The defendant no.1 has admitted that Akram was his employee. The defendant no.1 in his cross- examination has admitted that he was called by the police and there his another mare was taken into custody which means that his one mare is already in custody. He has admitted that he took both the mares on superdari. If he was not the owner of both the mares why he would have taken the same on superdari. Defendant no.3/ Akram in his cross-examination has admitted that Sh.Narender Kumar (defendant no.1) took him to the police station and Narender Kumar stood surety for him. Hence, it is the defendant no.1 who can tell best who was the other mare rider and admittedly since defendant no.1 has taken defendant no.3 Akram to the police station and where Akram was arrested as second mare rider. Defendant no.1 also stood surety for him at that time, therefore preponderance of probability is that it was Akram who was the other mare rider otherwise there was no reason for defendant no.1 to take Akram to the police station. Admittedly, CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 33 of 49 Akram had not made any complaint to the police or any other Authority in writing that he was not the mare rider who hit the decased. In these circumstances, in my view the defendant no.3 Akram is the other mare rider who hit Smt. Saroj Bansal causing her death.
35. In view of the above, I held that both defendants no.2 and 3 while riding mares on 08.08.2006 hit Smt. Saroj Bansal causing her death, hence they were negligent. Issue no.1 is decided accordingly.
ISSUE NO.2 "Whether plaintiff is entitled for the compensation as claimed? If so, to what amount and against which of the defendant? OPP"
36. In view of my finding of issue no.1 since death of Smt. Saroj Bansal, wife of plaintiff no.1 and mother of plaintiffs no.2 and 3 was caused due to hit by two mares driven by defendants no.2 and 3, therefore they are liable to compensate the plaintiffs for the death of Smt. Saroj Bansal and defendant no.1 CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 34 of 49 being the owner of both the mares is vicariously liable to compensate the plaintiffs.
37. As far as defendant no.4 is concerned, no evidence has been produced by the plaintiffs that any of the mares involved in the accident owned by the defendant no.4, therefore I held that defendant no.4 is not liable to compensate the plaintiffs.
38. As far as defendants no.5, 8 and 9 are concerned, in my view they are not liable because there is no evidence produced by the plaintiff that keeping of the mares in Delhi is legally ban. In my view, for the individual act of negligency of defendants no.2 and 3 by racing the mares on public road, defendants no.5, 8 and 9 whose duty is to maintain law and order in Delhi cannot be held liable to pay compensation.
39. As far as defendants no.6 is concerned, no written statement has been filed on its behalf to defend the case. Defendant no.6 has been impleaded being the Chief Secretary of Govt. of NCT of Delhi. In my view, it is the responsibility of the Govt. of NCT of Delhi to make rules and regulations with respect to CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 35 of 49 the keeping of animals either for the personal use or commercial purpose like wedding or religious purpose and they should have made rules that in case any loss is caused by those animals then who will compensate for the same as public cannot be allowed to suffer. In my view, there should be some scheme of third party insurance like in the case of vehicles in respect of those animals who are used as vehicles either for carrying persons or goods as they can also caused accident which can result into loss of life or property as in the present case but since no such policy has been framed by the defendant no.6 in my view defendant no.6 should also compensate the victims and in case of death to the victim's family.
Similarly defendant no.7 being the Municipal Authority who is also responsible for giving license to the mares are also responsible for making the rules and regulations how such animals will be used and should be responsible for making the policy and in case any accident is caused by these animals like in the present case, the MCD should also compensate.
40. Therefore, in these circumstances, in my view CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 36 of 49 defendants no.1, 2, 3, 6 and 7 are responsible for compensating the plaintiffs for the death of Smt. Saroj Bansal. The defendants no.6 and 7 will be liable to pay 40% (i.e. 20% each) of the total compensation and defendants no.1 to 3 will be liable to pay 60% compensation which they shall liable to pay jointly and severally.
41. Now coming to the next question, what should be the compensation amount. PW1 has deposed that his wife was drawing a gross salary of Rs.19,978/- per month while working as a Professional Assistant with School of Open Learning, University of Delhi and had she survived her salary by the date of superannuation would have been around Rs.30,000/- per month as per 6th Central Pay Commission. He has further deposed that at the time of demise of his wife, her elder son Hitesh Bansal was married and was having a child and he, his wife and child also lost the company and loving care of their deceased mother, mother-in- law and grandmother. Plaintiff no.3 was not married at the time of demise of his mother and became love-lorn and he missed the company of his mother and has claimed compensation to the tune of Rs.18 lakhs along with interest @ 18% per annum. He has also filed a chart regarding loss of income as per which total salary loss CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 37 of 49 is Rs.2,19,438/- and pension loss is Rs.9,12,789/- and total loss is Rs.11,80,239/-. In his cross-examination, he stated that he took voluntary retirement on 31.10.2003. He received service benefit upto Rs.15 lacs on his VRS. He has two sons and his one son is unemployed and another son is employed in a private company.
42. PW2 Sh. Pradeep Kumar Bajpayee has produced the details of the payment made to plaintiff after death of his wife Ex.PW2/1 and the details of payment that would have been paid had she survived Ex.PW2/2. As per Ex.PW2/2, loss of salary w.e.f. 09.08.2006 upto 31.03.2008 was Rs.20,230/- p.m. and after the increment on 01.07.2007 her basis pay would have been Rs.20,840/- plus allowances and there was loss of 50 days Earned Leave and loss on account of commutation was Rs.409831/- and loss of pension was Rs.10115/-.
43. The plaintiffs have claimed damages on the basis of difference of actual income and loss of pension and which plaintiffs have received besides claiming Rs. 850000/- as loss to families but plaintiffs in his testimony has not stated how the plaintiffs have arrived to this figure of Rs. 850,000/-. Hence in my CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 38 of 49 view compensation cannot be granted because it is so assessed by the plaintiffs.
44. In case of a death caused by rashness and negligence there are two specific laws i.e. the Workmen Compensation Act which deals with compensation in case of death of an employee while he died during the course of his employment and Motor Vehicle Act which deals with the compensation in case of death by a Motor Vehicle. In my view, since the cause of the death of the deceased Smt. Saroj Bansal in this case is akin to the death in a motor accident case because in the present case mare was involved instead of vehicle, therefore it would be appropriate to adopt the formula of compensation as prescribed in the Motor Vehicle Act 1988. To support my view I rely upon Sarla Verma & Ors vs Delhi Transport Corp.& Anr MANU/SC/0606/2009 in which Hon,ble Supreme Court held in para no.7 that:
"7. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 39 of 49 the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:
"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. The assessment of damages to compensate the dependants is beset with difficulties because from the 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 chances 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."
"The matter 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 capitalized by multiplying it by a figure representing the proper number of year's purchase."
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing 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 consumed-up over the period for which the dependency is expected to last."
"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 CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 40 of 49 the entire future earnings for over the period the 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 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one-fourth 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."
In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :
"In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one- third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies' formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables........Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 41 of 49
45. Further in this Hon'ble Supreme Court held that:
9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 42 of 49 and cost of any medical treatment of the deceased before death (if incurred) should also added.
Question (i) - addition to income for future prospects
10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses. The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, 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. [Where the annual CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 43 of 49 income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted.
Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Re : Question (ii) - deduction for personal and living expenses
12. We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act, 1988 (`MV Act' for short).
13. But, such percentage of deduction is not an inflexible rule and offers merely a guideline. In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 44 of 49 members of the family/dependants. In UPSRTC v. Trilok Chandra [1996 (4) SCC 362], this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration:
"X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for and adult and one unit for a minor. Thus X and his wire make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out- of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month per month leaving a balance of Rs. 3500-1250=Rs.2250 per month. This amount can be taken as the monthly loss of X's dependents."
In Fakeerappa vs Karnataka Cement Pipe Factory - 2004 (2) SCC 473, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:
"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction."
In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one- third of the income.
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 45 of 49
14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
Re :Question (iii) - selection of multiplier
46. Further with respect to multiplier in this case Hon'ble Supreme Court has held that:
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 46 of 49 Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
47. Now reverting back to the case, from the Ex.PW2/2, it is evident that the date of superannuation of Smt. Saroj Bansal was 31.03.2008, therefore she was around 58 years & 05 months old on the date of her death and her salary was Rs.20230/- per month (basic + grade pay). At that time DA was just 2%. Hence, total monthly salary was Rs.20600/- approx. The defendant was 58 years old as her retirement was on 31.03.2008, therefore as per Sarla Verma case (supra) in present case multiplication of 7 is applicable as per the scheme of Motor Vehicles Act. Therefore total compensation comes to Rs.17,30,400/- (20600X12X7). Further out of the said amount 1/3rd is reduced as expenses which she would have incurred on herself. Therefore compensation came to 11,53,600/-. In National Insurance Company Ltd vs Parnay Sethi & others (2017) ACJ 2700 computation for loss of estate and funeral expenses have been pegged at Rs.15,000/- each. Hence CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 47 of 49 considering the fact that deceased Saroj Bansal died in year 2006 I held that plaintiff is entitle to Rs.10,000/- as funeral expenses and Rs.10,000/- as loss of estate therefore, plaintiff is entitled to a total compensation of Rs.11,73,600/- [1153600+ 10000+ 10000].
48. As per Section 1A of Fatal Accident Act, 1855 a suit can be filed for compensation to the family of a person for loss occasion to it by his death and further every such suit can be filed for the benefit of the wife, husband, parents and child. From the testimony of PW1, it is evident that he was the husband and plaintiffs no.2 and 3 were sons and plaintiff no.3 was employed, therefore plaintiff no.3 was not dependent upon Smt. Saroj Bansal whereas plaintiff no.2 Hitesh Bansal was unemployed and was financially dependent upon her. Therefore considering all these facts I order that plaintiff no.3 will be entitled to only 20% out of total compensation and plaintiffs no.1 and 2 will be entitled to 40% compensation each.
RELIEF
49. In view of my findings of above issues, I pass a decree CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 48 of 49 for a sum of Rs.11,73,600/ (Eleven Lakhs Seventy Three Thousand Six Hundred only) in favour of the plaintiffs alongwith interest @ 9% per annum from the date of filing of the suit till the date of decree and thereafter till its realization. Out of the said amount, defendants no.1 to 3 shall pay 60% which they shall be liable to pay jointly and severally and defendant no.6 and 7 shall pay 20% each. Out of the said amount plaintiff no.1 and 2 will be entitled to 40% compensation each and plaintiff no.3 will be entitled to 20%. Plaintiffs are also entitle to proportionate cost of the suit. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in the open Court on 11.11.2019. (Sanjeev Kumar-I) Additional District Judge-12, (Central), Tis Hazari Courts, Delhi.
Digitally
signed by
SANJEEV
SANJEEV KUMAR
KUMAR Date:
2019.11.11
17:18:16
+0530
CS No.613520/16 Satya Parkash Bansal & Ors. Vs. Narendra Kumar & Ors. Pg. 49 of 49