Delhi High Court
Rita Kishore & Ors vs Delhi Development Authority on 12 August, 2011
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 10.08.2011
Judgment Pronounced on: 12.08.2011
+ CS(OS) 417/2005
RITA KISHORE & ORS ..... Plaintiff
Through: Ms. Jyoti Singh, Sr. Advocate
With Mr. J.L.Grover & Ms. Puja Anand,
Advocates
versus
DELHI DEVELOPMENT AUTHORITY ..... Defendant
Through: Mr. B.P.Aggarwal, Advocate
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in Digest? Yes
V.K. JAIN, J
1. This is a suit for recovery of Rs.42 lakh as damages
and compensation. Late Sh. Giri Raj Kishore, husband of
plaintiff No.1 and father of plaintiffs No.2 and 3, was an
employee of defendant DDA, working as Assistant Field
CS(OS)No. 417/2005 Page 1 of 27
Investigator and he died in a fatal accident while on duty, in
DDA office at Vikas Sadan, New Delhi, when he was
crushed by a lift. It is alleged that the defendant had
provided defective and ill-maintained lift for its employees,
in violation of safety rules, which resulted in the aforesaid
fatal accident claiming the life of Sh. Giri Raj Kishore. At
the time of his death Sh. Giri Raj Kishore was about 37
years old and had another 21 years to retire. It is alleged
that he was drawing a salary of Rs.4000/- per month at
that time. The plaintiffs have claimed Rs.37 lakh towards
loss of salary benefits, economic loss, retirement benefits,
etc. and a sum of Rs.5 lakh has been claimed as damages for
installing unsafe lifts which resulted into the fatal accident,
causing corporeal loss, mental torture and agony to the
plaintiffs.
2. The defendant has contested the suit and has
claimed that since it has already paid leave encashment,
gratuity, the amount lying in GIS and benevolent fund and
is also paying family pension, the plaintiffs are not entitled
to any amount. It is also alleged that the accident occurred
due to failure of the machine and not on account of any
negligence of any official of DDA. On merits it has been
CS(OS)No. 417/2005 Page 2 of 27
admitted that late Sh. Giri Raj Kishore was working as
Assistant Field Investigating Officer and was survived by the
plaintiffs. It is also admitted that the accident occurred on
21st April 1994 when lift No.1 broke down and took an
upward jump when Sh. Giri Raj Kishore put his foot
outward, as a result of which he got stuck and was
seriously injured. He was taken to All India Institute of
Medical Science, but could not be saved. The accident,
according to the defendant, occurred due to technical defect
in the lift. It is further alleged that an enquiry was setup by
the defendant wherein two officials of DDA namely Om Vir
Singh, Lift Operator and B.C. Joshi, Mechanic, were blamed
for allowing the passengers in the lift which otherwise was
not found functioning satisfactorily for last ten days. The
chargesheet was accordingly issued to Sh. Om Vir Singh,
who was suspended on 21st April 1994. However,
consequent to his acquittal by the Court his suspension was
reviewed and he was reinstated vide order dated 7th June
1996. It is, however, not disputed that Sh. Giri Raj Kishore
was about 37 years old at the time he died and had he
remained alive, he would have continued to serve DDA for
21 more years. It is also alleged that DDA had offered
CS(OS)No. 417/2005 Page 3 of 27
allotment of a flat to the plaintiff for a consideration of
Rs.4,01,400/-, which was less than half of the prevailing
market price and this allotment was also a compensation
since late Sh. Giri Raj Kishore was not registered with DDA
for allotment of a flat.
3. The following issues were framed on the pleadings
of the parties on 4th March 1998:-
(i) Whether the death of Giri Raj Kishore took
place due to improper maintenance of the
lift by the defendant?
(ii) If so, what amount of compensation the
plaintiffs are entitled to recover from the
defendant?
(iii) Whether sale of flat whose market value was
more than double the amount of sale
consideration to plaintiff No.1 was by way of
compensation as alleged?
(iv) Whether Om Vir Singh, lift operator and
B.C. Joshi, mechanic alone were responsible
for the death of Giri Raj Kishore?
(v) Whether the accident was beyond the
control of the defendant?
(vi) Relief.
ISSUES No.(i), (iv) & (v)
CS(OS)No. 417/2005 Page 4 of 27
4. As noted earlier, the defendant itself has alleged in
the written statement that the enquiry ordered by it had
revealed that its employees Sh. Om Vir Singh, Lift Operator
and Sh. B.C. Joshi, Mechanic, were to be blamed for
allowing the passengers to board the lift which was not
found functioning satisfactorily for last ten days. Thus, the
written statement contains an admission of the defendant
that the lift boarded by late Sh. Giri Raj Kishore dated 21st
April 1994 had developed some defect and was not
functioning satisfactorily at the time it was allowed to be
used by the employee of DDA and the Lift Operator as well
as the Mechanic were to be blamed for this lapse on their
part. This is not the case of DDA in the written statement
that the lift which was otherwise functioning satisfactorily
and properly broke down and took an upward jump all of a
sudden. The written statement indicates that the defect in
the functioning of the lift was very much in the knowledge of
the employees of DDA and had persisted for about ten days
before this fatal accident took place on 21st April 1994.
5. The plaintiffs have examined plaintiff No.1 Smt.
Rita Kishore whereas the defendant has examined two
CS(OS)No. 417/2005 Page 5 of 27
witnesses namely Sh. Om Vir Singh and Smt. Asma Manzar.
6. In his affidavit by way of evidence Sh. Om Vir
Singh has stated that there are four lifts in DDA building,
which have been given serial No.1 to 4. On 21 st April 1994
at about 8:30 AM, he went to lift No.1, opened its door and
took out the keys of lift No.2. He then made lift No.2
operational by switching on its mains from the machine
room on the 7th floor and brought that lift to the ground
floor. Since that lift was not running smoothly, he brought
it back to the 7th floor and locked it. He then made lift No.3
operational. That lift was also found giving jumps so he
brought it back to the 7th floor and locked it. He then
opened lift No.1 and made it operational. The lift was fully
functional and he made several runs in it till 9:30 AM.
Thereafter, he gave the key of lift No.1 to Shiv Dutt, Lift
Operator and went to the room of Lift Supervisor. Sh. Ram
Prakash, Supervisor asked him to operate the lift from
10:30 AM. He took the key and came to lift No.1 in the B
Block, where he learnt that the lift had stopped on the 7 th
floor. He went to the 7th floor through stairs and found the
door of lift No.1 open and the emergency switch was found
CS(OS)No. 417/2005 Page 6 of 27
on. The lift, however, did not start despite his trying to
make it functional by using the key and making it auto-
attendant. He heard the voice of the mechanic from the
machine room, asking him not to start the lift. After a
couple of minutes, the mechanic asked him to operate the
lift. He then brought the empty lift to the ground floor and
again made a trial run back to the 7th floor. The lift was
found working satisfactorily. Several passengers got into
the lift at the ground floor to go to the upper floor. The lift
stopped at the second floor. When the door opened, a
passenger started stepping out of the lift. However, before
the passenger could get out completely, the lift started
moving and gave a jump. He immediately pressed the
emergency switch as well as the emergency call bell.
However, the passenger had got stuck on account of the
jump taken by the lift and despite efforts, it could not be
brought back into the cage of the lift. Thereafter, the lift
was brought down from the machine room and other
employees helped the passenger, who was trapped inside
the lift. He has stated that there was no negligence and he
had satisfactorily performed his duties as a Lift Operator.
CS(OS)No. 417/2005 Page 7 of 27
7. In her affidavit by way of evidence, Ms. Asma
Manzar, Director (P) of DDA has stated that since 1991-92,
the contract for service and maintenance of lift was given to
M/s. Brisk Services Limited and that company was
responsible for the maintenance and upkeep of the lifts.
She has further stated that this accident occurred when Sh.
Giri Raj Kishore was stepping out of the lift on the second
floor. According to her, the accident was completely
unforeseen and beyond the control of DDA. She has stated
that the Date of Birth of Sh. Giri Raj Kishore was 30th
September 1956 and at the time of his death he was about
37 years and 7 months old, receiving salary of Rs.3774/-
per month and he would have retired on 30th September
2016.
8. In para 2 of its written statement on merits, the
defendant has specifically stated: "the accident occurred
due to technical defect in the lift". Thus this is defendant's
own case in the written statement that a technical defect in
the lift was the cause of the accident in which Mr. Giri Raj
Kishore lost his life, while on duty in DDA office at Vikas
Sadan, New Delhi. In para 4 of the written statement on
CS(OS)No. 417/2005 Page 8 of 27
merits, it is stated that the Inquiry Officer, who conducted
the enquiry into this extent recommended: "both Mr. Om Vir
Singh and Mr. B.C. Joshi deserve to be blamed for allowing
the passengers in the lift, which otherwise was not found
functioning satisfactorily for the last ten days". Hence, it
cannot be disputed that the lift which Mr. Giri Raj Kishore
boarded on that date was not giving satisfactory
performance for ten days prior to this incident and it was a
defect in the lift which resulted in this incident. Even
otherwise, there is no way an incident of this nature could
have happened, had the lift been in order, and free from any
defect on 21st April 1994. There is no likelihood of a lift
which is otherwise free from any technical defect, all of a
sudden taking a jump and start moving upward. This can
happen only because of a technical snag in the lift. The
plaintiff before this Court was not a witness to the incident
in which Mr. Giri Raj Kishore lost his life. They are not in a
position to tell the Court what exactly led to the lift taking
jump and start moving up all of a sudden. It is only the
owner of the lift, who can tell the Court as to how this
incident took place. The well-known maxim "res ipsa
loquitur" can be safely applied in an accident of this nature
CS(OS)No. 417/2005 Page 9 of 27
where the cause of accident is primarily within the
knowledge of the defendant. This maxim is stated as under
in its classic form:-
Where the thing is to shown to be under
the management of the defendant or his
servants, and the accident is such as in
the ordinary course of things does not
happen if those who have the management
use proper case, it affords reasonable
evidence, in the absence of explanation by
the defendants, that the accident arose
from want of care.
With respect to the aforesaid maxim Supreme
Court in Shyam Sunder and Ors. vs. The State of
Rajasthan AIR 1974 SC 890 inter alia observed as under:-
The maxim is only a convenient label to
apply to a set of circumstances in which
the plaintiff proves a case so as to call for a
rebuttal from the defendant, without having
to allege and prove any specific act or
omission on the part of the defendant. The
principal function of the maxim is to
prevent injustice which would result if a
plaintiff were invariably compelled to prove
the precise cause of the accident and the
defendant responsible for it, even when the
facts bearing on the matter are at the
outset unknown to him and often within
the knowledge of the defendant....
The maxim is based on common sense and
its purpose is to do justice when the facts
bearing on the causation and on the care
exercised by defendant are at the outset
unknown to the plaintiff and are or ought
CS(OS)No. 417/2005 Page 10 of 27
to be within the knowledge of the defendant
(see Barkway v. S. Wales Transport [1950]1
AER 392)....
The plaintiff merely proves a result, not any
particular act or omission producing the
result. If the result in the circumstances,
in which he proves it, makes it more
probable than not that it was caused by the
negligence of the defendant, the doctrine of
res ipsa loquitur is said to apply, and the
plaintiff will be entitled to succeed unless
the defendant by evidence rebuts that
probability....
Over the years, the general trend in the
application of the maxim has undoubtedly
become more sympathetic to plaintiffs.
Concomitant with the rise in safety
standards and expanding knowledge of the
mechanical devices of our age less
hesitation is felt in concluding that the
miscarriage of a familiar activity is so
unusual that it is most probably the result
of some fault on the part of whoever is
responsible for its safe performance (see
John, G. Fleming, The Law of Torts, 4 th ed.,
p.260).
As noted by Supreme Court in Shyam Sunder
(Supra), the mere fact that the cause of the accident is
unknown does not prevent the plaintiff from recovering
damages, though as far as the case before this Court is
concerned, the defendant has itself has stated in the written
statement that it was a technical defect in the lift which
caused this accident.
CS(OS)No. 417/2005 Page 11 of 27
In the case before Supreme Court, the engine of a
truck caught fire on the way and the deceased, in order to
prevent himself, jumped out of the truck and died. It was a
driver of the defendant who was driving at that time.
Holding the defendant liable to pay damages, Supreme
Court held as under:-
It is clear that the driver was in
management of the vehicle and the
accident is such that it does not happen in
the ordinary course of things. There is no
evidence as to how the truck caught fire.
There was no explanation by the defendant
about it. It was a matter within the
exclusive knowledge of the defendant. It
was not possible for the plaintiff to give
any evidence as to the cause of the
accident. In these circumstances, we
think that the maxim res ipsa loquitur is
attracted.
9. In K.L. Juneja vs. M/s. Bawa Dan Singh and
Sons. 1997 I AD (DELHI) 317, the plaintiff, who had visited
the building on the invitation of an employee of defendant
No.1, fell into the basement of a building through an
opening which had not been fenced, as a result he received
multiple fractures. This Court was of the view that as the
building was owned by defendants No.1 to 3 it were they
who were responsible for the safety of the visitors and were
CS(OS)No. 417/2005 Page 12 of 27
obliged to keep the dangerous openings closed adequately
so that there was no chance of a mishap. Applying the
principle of res ipsa loquitur the Court was of the view that it
was not for the plaintiff to prove that defendants were
negligent or lacked foresight. On the contrary it was for the
defendants to prove that they were not negligent and had
taken every precaution to safety and precaution of all
invitees and visitors.
10. In Klaus Mittelbachert & Ors. vs. The East India
Hotels Ltd. & Ors. 65 (1997) DLT 428, the plaintiff visited
the swimming pool of a five star hotel, hit his head on the
bottom of the swimming pool and sustained serious
injuries. He sought damages amounting to Rs.50 lakh from
the defendant. It was found by the Court that the
swimming pool was defective in design. The Court was of
view that any latent defect in the structure or service, which
is hazardous to guests, would attract strict liability to
compensate for consequences flowing from its breach of
duty to take care and a guest in the hotel enjoys an implied
assurance from the hotel that not only the building
structure but the services offered by it were safe and
CS(OS)No. 417/2005 Page 13 of 27
immune from any danger inherent or otherwise. Applying
the doctrine of res ipsa loquitur the Court was of the view
that where the thing which causes the accident is shown to
be under the management of the defendant or his employees
and the accident is such as in the ordinary course of things
does not happen if those who have the management use
proper case, it affords reasonable evidence, in the absence
of explanation from the defendant, that the accident arose
for want of care. The Court was of the view that three
conditions must be satisfied to attract the applicability of
the doctrine: (i) the accident must be of a kind which does
not ordinarily occur in the absence of someone's negligence;
(ii) it must be caused by an agency or instrumentality within
the exclusive control of the defendant; (iii) it must not have
been due to any voluntary action or contribution on the part
of the plaintiff.
11. In K.V. Narasappa vs. Kamalamm and Ors. AIR
1968 Kant 345, the building contractor undertook to
construct a receiving station for the State Government.
During casting of beam, one beam came down, pulling down
along with it one of the stone pillars on which it was
CS(OS)No. 417/2005 Page 14 of 27
intended to be rested. Three workmen, who were employed
by the defendant and working in the casting were killed.
The husband of plaintiff No.1, who was also father of
plaintiffs No.2 and 3 in that case was amongst those who
lost their life. The suit was filed against the contractor as
well as against Mysore State Electricity Board to which the
Department of Electricity was transferred by the
Government. Though the plaintiff alleged that the beam
had come down on account of defective material and
carelessness in the construction of the beam, the defendant
maintained that every reasonable precaution had been
taken for construction of the beam. The State Electricity
Board also contended that contractor alone was responsible
to pay compensation to the plaintiffs. The contractor
claimed that accident was attributable to the sudden
coming down of the lintel beam during concreting causing
the pulling down of the stone pillar. Applying the maxim res
ipsa loquitur, the Court felt that in a case of this nature
accident speaks for itself and that the beam would not have
come down had it been properly constructed and had there
been no negligence. The Court was of the view that
collapsing of the beam raises a presumption of negligence
CS(OS)No. 417/2005 Page 15 of 27
which should have been dispelled by the person who was
under a duty to counteract the inference emanating from
the nature of the accident. The contractor also claimed that
the liability to pay damages was exclusively of the Board
since he was not an independent contractor and was to
work under the instructions of the Superintendent/Chief
Electrical Engineer or his authorized representative and the
beam was constructed in obedience to their instructions. It
was held that both, the contractor as well as the Board,
were liable to pay compensation to the plaintiffs. Applying
the ratio in the above referred cases, the defendant is liable
to pay damages for the accident, which resulted from a lift
owned by it.
12. It has come in evidence of the defendant that it
had outsourced the service and maintenance of lift to M/s
Brisk Services Limited which was responsible for their
upkeep and maintenance. However, there is absolutely no
pleading to this effect. No such averment has been made in
the Written Statement. Hence the evidence being beyond
the pleadings needs to be excluded from consideration.
Even if I proceed on the assumption that the
CS(OS)No. 417/2005 Page 16 of 27
maintenance and upkeep of the life had been outsourced to
another agency, being the owner of the lifts, the defendant
would still be liable to an outsider including an employee of
the defendant, it is immaterial whether the accident
occurred due to negligence of the defendant or due to
negligence of the agency to which the maintenance and
upkeep of the lift had been outsourced. This is a matter
between defendant and the agency stated to have been
employed by it for upkeep and maintenance of the lifts.
Since the accident occurred on account of some defect in
the lift owned by the defendant, it would be liable to pay
compensation even if it had outsourced the maintenance of
the lifts to another agency. If the contract between the
defendant and the agency to which upkeep and
maintenance of the lifts was outsourced by it so provides
the defendant can claim reimbursement from that agency
for the damages it is made to pay to the plaintiffs, but, it
cannot escape its liability qua the defendants on the ground
that maintenance and upkeep of the lifts had been
outsourced by it.
13. It has come in the deposition of Shri Om Vir Singh,
CS(OS)No. 417/2005 Page 17 of 27
who claims to be operating the lift in which this incident
took place, that though lift No. 1 in which this incident took
place had stopped on the 7th floor, its doors did not open
and the lift did not start despite his trying to make it
functional by using the key and making it auto-attendant
the mechanic had later asked him to operate the lift and at
that time the lift was found working satisfactorily. However
no mechanic has been produced by the defendant to prove
that he had set right the defect which was found in lift No. 1
on that day and thereafter the lift was functioning properly.
In fact even the name of the mechanic has not been given by
the witness. It has come in the deposition of this witness
that the mechanic from the service contractor had come to
attend to the problem in lifts No. 2 & 3 and not to attend to
the problem in lift No. 1. As noted earlier, the defendant
itself has stated in the Written Statement that the inquiry
had revealed that this lift was not functioning properly for
the last 10 days. Thus, no complaint seems to have been
lodged by the employees of the defendant for as many as 10
days, for repair of lift No. 1, as is evident from the fact that
the mechanic on that day had come to attend to lifts No. 2 &
3 and not to attend lift No.1.
CS(OS)No. 417/2005 Page 18 of 27
14. In my view, the deposition of Mr. Om Vir Singh to
the effect that the lift No.1 was checked by a mechanic on
that day and thereafter it was found functioning properly
also needs to be excluded from consideration, being beyond
the pleadings of the defendant. Nowhere has it been alleged
in the Written Statement that lift No.1 was checked by a
mechanic on that day the defect found in the lift was
repaired and thereafter the lift was found functioning
properly. In fact the report of the Inquiry, which the
defendant itself had disclosed in para 04 of the Written
Statement on merits, clearly indicates that the lift was not
functioning properly and that is why the Inquiry Officer had
recommended disciplinary action against the lift operator
Sh. Om Vir Singh and Sh. B.C. Joshi, Mechanic, for
allowing visitors in the lift, which otherwise was not found
functioning satisfactorily. In any case, not much reliance
can be placed on the testimony of Shri Om Vir Singh since
being the liftman on duty he had a vested interest to say
that the lift was checked and was found functioning
properly before it was alleged to be boarded by the visitor.
Admittedly Mr. Om Vir Singh was prosecuted, though he
came to be acquitted since no criminal negligence on his
CS(OS)No. 417/2005 Page 19 of 27
part could be proved by the prosecution, but, he knew it
very well that if he admits that he had allowed the visitors to
board a lift which was not functioning satisfactorily, he
would be in difficulty and may be held responsible for the
accident in which Mr. Giri Raj Kishore lost his life.
Since the lift was not functioning properly, the lift
operator, who was an employee of DDA should not have
allowed the visitors to board it till the time it was duly
repaired and certified to be functioning properly and
satisfactorily. Being not only the owner of the lift, but also
the employer of the lift operator, the defendant is vicariously
liable for the negligence which resulted in causing of the
accident in which Mr. Giri Raj Kishore lost his life on that
day.
For the reasons given in the preceding paragraphs
I have no hesitation in holding that the accident in which
Mr. Giri Raj Kishore lost his life occurred due to improper
maintenance of the lift and the defendant cannot escape its
liability to pay maintenance to the plaintiffs.
ISSUE No.(iii)
15. It has come in evidence that a flat was offered by
CS(OS)No. 417/2005 Page 20 of 27
defendant to plaintiff No.1 at less than the prevailing market
price. According to Ms. Asma Manzar, Director (P) of DDA
the market value of the flat would be Rs.10.75 lakh whereas
the defendant sought to charge only Rs.766700/- from
plaintiff No.1 for the flat offered to her. This is not the case
of the defendant that it had offered the flat to plaintiff No.1
at less than its normal allotment price. There is no
independent evidence to prove that the flat offered by the
defendant to plaintiff No.1 at a market value higher than the
price at which the flat was offered to her by DDA. No
property dealer or values has been produced to show what
precisely was the prevailing market value of the aforesaid
flat at that time it was offered to plaintiff No.1 was. The flat
was not offered free of cost. In such a case, if plaintiff No.1
could not avail the offer made by DDA on account of her
inability to pay the price which DDA was demanding for the
aforesaid flat, that would not absolve the defendant of its
liability nor would it in any manner take away the legal right
of the plaintiff to claim compensation for the accident which
occurred due to negligence of the defendant. The issue is
decided accordingly.
CS(OS)No. 417/2005 Page 21 of 27
ISSUES No. ii & iv
16. The compensation in such cases needs to be based
on the reasonable expectation of pecuniary benefit or benefit
reducible to money value. In order to ascertain the
quantum of damages/compensation in such cases, the
Court needs to a) first estimate what was the deceased
person's expectation of life, if he had not been killed when
he was; and b) what sums during sums during those years
he would have probably applied to the support his
dependents. The actual extent of pecuniary loss to the
aggrieved party is not capable of an accurate ascertainment
but must necessarily by an estimate or even partly a
conjecture. There could be no exact uniform rule for
measuring the value of human life and therefore quantum of
damages cannot be calculated with mathematical precision.
It must necessarily depend upon the particular facts and
circumstances of each case.
17. It was admitted during the course of arguments
that at the time of death, late Shri Giri Raj Kishore was
drawing a gross salary of Rs.4764/- pm. It is also an
admitted case of the parties that at the time of his death
CS(OS)No. 417/2005 Page 22 of 27
Shri Giri Raj Kishore was about 37 years old and, therefore
had he remained alive, he would have continued in the
service of DDA for about 23 more years. The annual gross
salary of late Shri Giri Raj Kishore at the time of his death
comes to Rs.57168/-; if this figure is multiplied by 23 [the
number of years late Shri Giri Raj Kishore would have
served with DDA had he remained alive], it comes to
Rs.1314864/-. In Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr. 2009(6)SCC 121, Supreme Court was
of the view that as a rule of thumb an addition of 50% of
actual salary to the actual salary income of the deceased
towards future prospects should be adopted, where the
deceased had a permanent job and was below 40 years.
Since late Shri Giri Raj Kishore admittedly was in a
permanent job in DDA and less than 40 years old at the
time of death, an addition of 50% of his gross salary needs
to be made to the aforesaid sum of Rs.1314864/-. There is
no evidence before the Court that he was paying any income
tax on the salary which he was drawing from DDA. Addition
of 50% of the amount of Rs. 1314864/- comes to
Rs.657432/-. The gross salary of late Shri Giri Raj Kishore
for 23 years along with 50% addition on it for future
CS(OS)No. 417/2005 Page 23 of 27
prospects comes to Rs.1972296/-. In the case of Sarla
Verma (supra) Supreme Court deemed it appropriate to
standardize the deductions to be made under the head of
personal and living expenses of the deceased and noted that
the practice was to deduct 1/3rd of the income if the
deceased was married and 1/2 of the income if he was a
bachelor. In Kerala SRTC v. Susamma Thomas (1994) 2
SCC 176, Supreme Court held that in the absence of
evidence, it is not unusual to deduct 1/3rd of the gross
income towards the personal living expenses of the deceased
and treat the balance of the amount likely to have been
spent on the members of the family/dependents. After
considering earlier decisions on the subject including its
decision in Susamma Thomas (supra) and UPSRTC v.
Trilok Chandra (1996) 4 SCC 362 Supreme Court in case of
Sarla Verma (supra) was of the view that where the
deceased was married, the deduction towards personal and
living expenses towards the deceased should be 1/3rd where
the number of dependents family is 2-3 and 1/4th where the
dependent family members is 4-6 and 1/5th if the number
of dependent family members exceeds 6. In the case before
this Court the number of dependents of late Shri Giri Raj
CS(OS)No. 417/2005 Page 24 of 27
Kishore being 3, 1/3rd of the gross salary needs to be
deducted to ascertain the quantum of compensation to be
paid to the plaintiffs.
18. In the cases governed by Motor Vehicles Act, 1988
the courts have been adopting various multipliers in view of
the statutory provisions contained in the Act. But, while
quantifying the amount of compensation in a case of death
by negligence, which is not governed by the provisions of
Motor Vehicles Act, 1988, the Courts need not necessarily
apply the multiplier which they have been adopting in the
case of vehicular accident, compensation for which is
regulated by the provisions of the aforesaid Act. I, therefore
refrain from adopting the multiplier specified in Motor
Vehicles Act and quantify the amount of compensation on
the basis of number of years for which late Shri Giri Raj
Kishore would have continued in the service in DDA had he
remained alive. In fact, the age of 60 years, which is the
retirement age in DDA, can also be safely taken as the
minimum age, up to which late Shri Giri Raj Kishore was
likely to live had he not prematurely died due to this
accident. After deducting 1/3rd gross amount of
CS(OS)No. 417/2005 Page 25 of 27
Rs.1972296/- towards personal expenses of late Shri Giri
Raj Kishore, the balance amount comes to Rs.1314864/-.
The plaintiffs therefore, are held entitled to the aforesaid
amount of Rs.1314864/- as compensation from the
defendant. A sum of Rs.5 lakh has already been paid to the
plaintiff as interim compensation in terms of the order
passed by this Court on 1st September, 2000. The balance
amount payable to the plaintiffs thus comes to
Rs.814864/-. The issues are decided accordingly. Since
the order for payment of interim compensation of Rs.5 lakh
came to be passed only on 1st September, 2000, I am of the
view that the defendant should also pay interest on that
amount from the date of filing of the suit till the date on
which order for payment of interim compensation was
passed. I consider that interest @ 9% pa be paid on the
amount of Rs.5 lakh from the date of filing of the suit till 1st
September, 2000.
ORDER
19. In view of my finding on the issues, a decree for recovery of Rs.814864/-with proportionate costs, interest on the amount of Rs.814864/- @ 9% p.a. from the date of the CS(OS)No. 417/2005 Page 26 of 27 filing of the suit till the date of decree, interest on Rs.5 lakh from the date of filing of the suit till 1 st September, 2000 and interest @ 6% p.a. on the principal sum of Rs.814864/- from the date of decree till its payment, is hereby passed in favour of the plaintiffs and against the defendant. If, however, the entire amount due in terms of this judgment is paid within one month, the defendant will not be liable to pay any interest for the period subsequent to the passing of decree.
Decree sheet be drawn accordingly.
(V.K. JAIN) JUDGE AUGUST 12, 2011 Ag/vn CS(OS)No. 417/2005 Page 27 of 27