Delhi District Court
Smt. Neetu Khubchandani vs M/S Sethi Auto Service Station on 15 December, 2014
IN THE COURT OF SH. RAVINDER SINGH1. ADDL. DISTRICT JUDGE08
(CENTRAL):TIS HAZARI COURTS: DELHI
SUIT NO. 456/14
(Old No. 644/1992)
1. Smt. Neetu Khubchandani,
Widow of late SH. Manohar Khubchandani
2. Sh. Tarun Khubchandani
S/o Late SH. Manohar Khubchandani
3. Sh. Tanuj Khubchandani
S/o Late SH. Manohar Khubchandani
4. Ms. Namrata Khubchandani
D/o Late SH. Manohar Khubchandani
All residents of 52/12, Old Rajinder Nagar, Delhi ................ Plaintiffs
versus
1. M/s Sethi Auto Service Station,
Sir Ganga Ram Hospital Road,
New Delhi - 110 060
2. Indian Oil Corporation.
Through its Chairman,
SCOPE Complex,
Lodhi Road,
New Delhi. ..............Defendants
Date of Institution : 11021992
Date on which judgment was reserved : 05122014
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 1 / 25
Date of Pronouncing judgment : 15122014
SUIT FOR RECOVERY OF RS. 15,00,000 (RUPEES FIFTEEN LAKH ONLY) AS
COMPENSATION
JUDGMENT:
1. Vide this judgment, I shall disposed off plaintiffs suit which they filed against M/s Sethi Auto Service Station and Indian Oil Corporation (hereinafter referred defendant No1 & 2 respectively) for recovery of Rs.15,00,000/ on account of death of one Sh. Manohar Khubchandani .
2. The deceased Manohar Khubchandani was survived by his widow plaintiff no. 1, two minor sons and a minor daughter Plaintiff no. 2 to 4 and his father Mansa Ram Khubchandani. i.e., plaintiff no. 5. During the course of proceeding, Plaintiff no. 5 has died on 1552001 so plaintiff no. 1 to 4 proceeded the suit vide order dated 822002. It is also pertinent that Plaintiff no. 2 , 3 & 4 moved an application U/O 32 Rule 12 CPC to grant leave to proceed the case in their own name as they became major. Their application was allowed vide order dated 2172004.
3. Briefly stated, the facts of the case are that defendant no. 1 is running a petrol pump which was established by defendant SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 2 / 25 no. 2 a company incorporated under the Companies Act at Sir Ganga Ram Hospital Road, New Delhi. Plaintiffs alleged that on 2271991 at about 3.45 p.m. deceased Manohar Khubchandani alongwith his business partner Navin Chand Vohra reached at Petrol Pump on his two wheeler scooter no. DL1S A 6627 and as soon as got the petrol filled, it started raining heavily, so in order to protect himself from the sudden rain deceased alongwith his friend took shelter in a shed built by defendants over a pump. Plaintiffs further alleged that 78 other persons also came their to take shelter and after few minutes while it was raining, the wall on the back of the shed suddenly gave way and collapsed and the bricks of the said wall started falling. A large block of bricks hit deceased on his head and bleeding started profusely. The deceased was immediately taken to Sir Ganga Ram Hospital, where necessary medical aid was provided but due to sever injuries he was declared dead at about 5.00 p.m. Plaintiffs further alleged that deceased was the only bread winner of their family and he was enjoying good health and personality. Plaintiffs further alleged that deceased was a technical man holding Diploma in Refrigeration and Air Conditioning and he has been running business of maintenance of airconditioners since 1972 alongwith his SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 3 / 25 business partner Sh. Navin Chand Vohra. Plaintiffs further alleged that deceased was earning Rs. 50,000/ per annum at the time of his death. Further he was filing IncomeTax return showing the taxable income of more than Rs. 40,000/ per annum. Plaintiffs further alleged that deceased was only 43 years of age and had a bright future ahead of him. Plaintiffs further alleged that they suffered financial as well as mental loss on account of death of deceased as they were totally depended upon deceased for their livelihood and further they were suffering from great hardship, love and affection and sense of security. Plaintiffs further alleged that they served legal notice upon defendants on 29101991 to pay the amount of compensation but defendants have failed and neglected to pay the same or any amount thereof. Hence, they filed the instant suit.
4. Summons for settlement of issue were served upon both the defendants and they filed their separate written statement.
5. Defendant no. 1 in its written statement stated that it is a partnership firm running a petrol pump 'A' site retail outlet in the name of M/s Sethi Auto Service Station having two partners Sh. Baldev Raj Sethi and Rohit Sethi, at the relevant time. Defendant no. 1 further stated that it has nothing to do with the construction and maintenance of said 'A' site retail SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 4 / 25 outlet at relevant site as construction and maintenance of same was always done by defendant no. 2 at its own cost. Defendant no. 1 further stated that whatever happened to Sh. Manohar Khubchandani on 2271991 at 3.45 p.m. was really unfortunate but it was purely the result of an act of God and for that reasons it is beyond any human control. Defendant no.1 further stated that deceased where he took shelter is not a shed for taking shelter from rain as there is a big RCC canopy which is meant for protection from rain, sun etc, so deceased Sh. Manohar Khubchandani continued to be remained under the big RCC Canopy for taking shelter from heavy rains but he had not done so and shifted to the other canopy so he is not liable to pay anything. Defendant no. 1 admitted that Sh. Manohar Khubchandani died on 2271991. Defendant no. 1 denied that deceased was died on account of any neglect of it. Accordingly, it prayed for dismissal of suit.
6. Defendant no. 2 in its written statement stated that deceased filled up his scooter from main canopy of petrol pump and took shelter under 2/3 wheeler canopy where 78 persons had taken shelter as severe thunderstorm followed by very heavy rains as a result of this, hillock on the rear of the wall slipped causing damage to the wall of the petrol pump SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 5 / 25 outlet and also some of the flying stones hit the deceased, so the death of deceased was caused due to the severe thunderstorm and heavy rain which was an act of god. Therefore, it can not be made liable for the same. It is further stated that land of back side of petrol pump does not belongs to defendants and it has been trespassed by encroachers who built huts on the same thereby making the stones breaking loose, so It is some of these flying stones which hit the deceased causing his death. It is further stated that back wall of petrol pump was in sound condition and built on the specification required of a boundary wall. Therefore, the death of deceased was something on account of the act of nature/negligent of the government and the encroachers who had not taken due precaution in seeing that boulders and stones beyond the wall had become loose. Defendant No2 further stated that plaintiffs have to give strict proof regarding income of deceased. Further defendant no2 denied about the relationship of deceased with the plaintiffs for want of knowledge however, it admitted the service of legal notice dated 29101991. Accordingly defendant no2 also prayed for dismissal of suit.
7. Plaintiffs filed replication to the WS of defendant no. 1 wherein he stated that due to heavy rain there was rush of SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 6 / 25 vehicles to take petrol (which was being filled under big canopy), so there was no place to stand underneath the big RCC canopy. Further plaintiffs denied the averments of written statement of defendant no1 and reiterated their facts stated in the plaint.
8. Plaintiffs also filed separate replication to the WS of defendant no. 2, wherein they denied that death of deceased was caused due to the flying stone which was an act of god. Further plaintiffs denied the other contents of the WS of defendant no2 and reiterated the fact stated in the plaint.
9. From the pleadings of the parties following issues were framed vide order dated 1511995:
i) Whether the plaintiffs prove that deceased Manohar Khubchandani was hit by the wall of the shed of the defendant and sustained injuries.
ii) Whether the plaintiffs further prove that the said Manohar Khubchandani met with death due to the injuries sustained by him on account of the fall of the wall.
iii) Whether the cause of fall was due to any negligence or carelessness on the part of the defendants.
iv) Whether the plaintiffs prove that they are entitled to claim and get Rs.
15,00,000/- by way of compensation from the SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 7 / 25 defendants on account of the death of the said Manohar Khubchandani.
v) What order and decree.
10.
11. In support of their case, plaintiffs examined four witnesses i.e., plaintiff no. 5 as PW1, Plaintiff no. 1 as PW2. Navind Chand Vohra as PW3 and Sh. Jahangir Singh, Tax Assistant, Ward 31(3) as PW4.
12. After examination of plaintiff witnesses, both defendant examined two witnesses each. Defendant no. 1 examined Rohit Sethi as DW1 and Sh. V.K.Handoo, Assistant Meteorologist as DW3 whereas Defendant no. 2 examined Sh. Amitabh Verma, Dy. Manager (Retail & Sales) as DW2, and Sh. S.K.Raja as DW4.
13. I have the argument of Ld. Counsel for plaintiffs and defendant no. 1 and perused the material available on record as well as the written argument of defendant no. 1 & 2.
14. My issue wise finding are as under:
Issue No. 1, 2 & 3.
All the aforesaid issues are taken up together as they are interconnected.
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 8 / 25 (A) Ld. counsel for the defendant no. 1 contended that PW3 is the only witness of site but his testimony is not sufficient to establish that deceased was hit by the wall of the shed of the defendants as he is not certain as to what exactly caused the death of deceased. He further argued that there is no autopsy report confirming the actual cause of death of deceased. Ld. Counsel for defendant no. 1 further contended that DW3 proved that on fateful day trees and electric poles were uprooted due to severe thunderstorm and very heavy rain, so the death of deceased was caused due to an act of God, hence, defendants cannot be made liable for the same. (B) Beside the aforesaid arguments of Ld. Counsel for the defendant no. 1, defendant no2 in its written arguments submitted that the place where deceased was alleged to have taken shelter is not a shed for the purpose of taking shelter from rain. Defendant no. 2 also submitted that Local Commissioner (L.C.) in his report Ex. DW1/P10 observed that test report of building material found satisfactory and further wall has been properly maintained. However, the hillock of the rear of the wall slipped causing damage to the wall of petrol outlet therefore some of the flying stone might hit the deceased and caused his death. SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 9 / 25 (C) Ld. counsel for plaintiffs contended that the death of the deceased was caused due to fall of wall of the petrol pump, so death of deceased was a direct result of the fall of wall of the premises of defendants who miserably failed and negligent to promptly maintain the said wall. Hence, defendants are liable for fall of wall. He further contended that Local Commissioner in their report Ex. DW1/P10 observed that wall has not been designed properly. (D) The fact which are admitted and not disputed are as under:
I) Defendant No1 was the dealer of Petol Pump situated at Sir Ganga Ram Hospital road at the relevant time.
II) The said Petrol Pump was 'A' site retail outlet of defendant no2.
III) Deceased Manohar Khubchandani alongwith his business partner PW3 reached at the petrol pump on 2271991 at 3.45 p.m. to get filled the petrol in his two wheeler scooter no. DL1SA 6627.
IV) Deceased after getting his two wheeler scooter filled from big canopy took shelter alongwith his business partner PW3 in 2/3 wheeler canopy due to rain.
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 10 / 25 V) The wall on the back side of the shed give way and collapsed.
VI) Deceased received severe injuries on his head and bleeding started profusely.
VII) PW3 shifted the deceased to Sir Ganga Ram Hospital where he was declared brought dead. VIII) There is small hill area behind the petrol pump. (E) Plaintiffs claimed that the death of deceased was caused due to fall of wall of petrol pump and thereby deceased got received injuries on his head and bleeding started profusely. Defendants claimed that besides deceased 78 persons also took shelter under the 2/3 wheeler canopy but except deceased no one else received any injury. Both defendants claimed that on account of severe thunderstorm and heavy rain some flying stone hit the deceased and thereby caused his death, so, it was an act of god and therefore they are not liable to pay any compensation to the plaintiff.
(F) Admittedly, defendant no. 1 has not taken the defense of flying stone hit the deceased in its WS so testimony of DW1 in this regard is beyond pleading and same cannot be relied.
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 11 / 25 (G) DW2 during his cross examination deposed that due to severe thunderstorm, some stones got breaks from hill which was behind the wall of petrol Pump. DW2 also deposed that he was posted in Delhi during the period of 1997 to 2002. He also deposed that he has not signed WS as same was signed by Mr. Rai Singhania to whom he had never worked with him. Further DW2 also deposed that he had not inspected the place of occurance himself and he is not aware whether Mr. Rai Singhania had inspected the site before mentioned the said facts in the WS. DW2 also deposed that he cannot say how defendant no. 2 came to know that deceased was hit by a flying stone. In view of above testimony of DW2, it is clear that defendant no. 2 had no source to know how some flying stone hit the deceased. It is also pertinent that defendant no. 2 has not examined any other witness to prove that flying stones hit the deceased before the collapse of the wall of petrol pump. Under these circumstance, the defence put by defendant no. 2 that some flying stones hit the head of deceased and thereby caused his death is after thought and therefore untenable.
(H) DW3 deposed that quantum of rain is not uniform in the entire Delhi during rainy season. DW3 further deposed SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 12 / 25 that he cannot say what was the volume of rain on 22071991 in the area of Old Rajender Nagar, between 3.25 PM to 4.00 PM, however, there was no rain between 8.30 AM to 3.25 PM on that day. Further DW3 deposed that he cannot say what was the speed of the wind in Old Rajender Nagar area on 22071991 at about 3.47 P.M. as the report Ex. DW3/1 pertains to Safdarjung Airport. So from the above testimony of DW3, it cannot be said that there was severe thunderstorm and heavy rain in the area of Rajinder Nagar, Delhi, where petrol pump is situated.
(I) PW3 the friend of deceased who accompanied him to petrol pump on the fateful day deposed that he has not seen the wall when it was falling down as the said wall was on his back side. PW3 also deposed that he cannot tell what hit to the deceased, however, when he saw the deceased he was under debris of wall of Sethi Petrol Pump.
The deceased was profusely bleeding from the head, so he immediately took him to Ganga Ram Hospital in casualty where he was attended by the doctors who declared him brought dead. PW3 is a natural witness and therefore he deposed what he saw. It is pertinent that the photographs of site Ex. P3/1 to P3/9 showing the falling wall of petrol pump is admitted by DW1. Under these circumstances, it is SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 13 / 25 clear that deceased received severe head injuries due to the fall of wall and therefore he was immediately shifted by PW3 to Sir Ganga Ram Hospital where he was declared brought dead. So it is hardly matter whether postmortem of deceased was conducted or not particularly when there is no suggestion to plaintiff witnesses i.e., PW1, PW2 & PW3 that deceased has not received any injury from fall of wall of Retail Pump belongs to defendants or the death of deceased was caused due to the injuries which were received by him by any other means.
(J) In view of above discussion, I am of considered opinion that deceased Manohar Khubchandani, was hit by the wall of the shed of the defendants and thereby he sustained injuries which resulted into his death. (K) Now further question which is to be determined whether defendants were negligent or careless in looking after and maintaining the wall of petrol pump or not. The instant suit for damages based upon law of torts so, plaintiffs are require to establish that:
(i) existence of duty to take care,
(ii) Breach of the said duty by the defendant due to failure of attain standard of care prescribed in law and, SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 14 / 25
(iii)causal connection between the breach and the loss caused.
(L) It is not in dispute that defendants were running the petrol pump where large number of public persons visited to fill the petrol in their vehicle. So a duty is cast upon the Defendants to properly maintained their petrol pump, so that no untoward incidents took place in the premises of petrol pump and any harm which will caused to member of public can be prevented.
(M) It is admitted that this suit was filed before Hon'ble High Court and Hon'ble High Court vide its order dated 1851992 appointed Sh. J.D. Goel as Local Commissioner who filed his report Ex. DW1/P10. Admittedly, Local Commissioner Sh. J.D.Goel, has not been examined as his summon received back for2482000 that he has expired. It is pertinent that neither plaintiff nor defendant no1 or defendant no2 filed any objection to the report of Local Commissioner Ex. DW1/P10. It is also pertinent that DW1 in his evidence affidavit Ex.DW1/A vide para 23 categorically deposed that report of Local Commissioner be looked into for appreciating the true facts. Further defendant no2 in its written statement stated as under:
It is submitted that even as per the report of the Local Commissioner, the walls were maintained SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 15 / 25 properly. It is further reported that the quality of bricks and the mortar used in the construction of the wall as per test report was satisfactory. In view of above, it is clear that the report of Local Commissioner relied by not only plaintiffs but also both the defendants. So under these circumstances, it is no matter whether Local Commissioner has been examined or not. (N) It is admitted that L.C. in his report Ex. DW1/P10 categorically stated that quality of bricks and mortar used in the construction of wall as per test report is satisfactory and wall appear to have been properly maintained.
Further, he also stated that the thickness of wall was only 9"and 13.5" which is very much less and it can be concluded that the wall has not been designed properly. (O) Admittedly, petrol pump is at Sir Ganga Ram Hospital Road, New Delhi and it is surrounded by small hill. The LC in his report Ex. DW1/P10 categorically stated that the thickness of wall was of 9" and 13.5" which was very much less. It is also admitted that there was rain on the fateful day. The wall was not so much thick as required in the area where petrol pump situated. So, merely because wall was properly maintained and test report of material was SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 16 / 25 satisfactory is not enough as the wall in question was not properly designed considering the fact where petrol pump is situated so due to rain the wall was collapsed and fell down towards the canopy where deceased was taking shelter from rain.
(P) Ld. Counsel for plaintiffs contented that doctrine of res ipsa loquitur is clearly applicable in the instant case as death of deceased caused due to fall of wall and the fall of wall could have been prevented by the exercise of reasonable care. Ld. Counsel for defendant no1 contended that defendant no1 is not liable as construction and maintenance of petrol pump was solely done by defendant no2. Whereas according to defendant no2 wall was properly maintained and material used for construction is also of good quality as found by LC in his report Ex. DW1/P10. So death of deceased was caused due to an act of God.
(Q) In Ashish Kumar Majumdar Vs. Aishi Ram Batra Public Chariable Hospital Trust and Ors. 2008 LD(Del)66, the Hon'ble High Court held that "Res ipsa Loquitor is a principle of evidence effecting onus and states that an accident speaks for itself. The said doctrine applies SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 17 / 25 when on the basis of evidence available, inference of negligence can be drawn but negligence cannot be proved and conclusively established. Therefore it cannot be applied when there is no evidence consistent with negligence by the defender or there can be several causes for the injury which cannot be attributed to the defender. It requires three conditions to be satisfied. Firstly, the happening should be unexplained. Secondly, unexplained would not have happened in ordinary course without negligence on the part of somebody and lastly circumstances are a pointer to negligence of the defender rather than any other person. The last requirement is usually fulfilled when there is material to establish that the damage/loss was caused by an instrument /act or omission under the maintenance and control of the defender. The above doctrine therefore requires facts which sufficiently indicates and point towards negligence but the real and actual SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 18 / 25 cause is unknown or known only to the defender".
"The first question that calls for decision is regarding the burden of proof of negligence in a case of this type. There is no doubt that the general rule in an action in tort is that the burden of proof initially lies on the plaintiff. There is, however, an equally well established exception to the above mentioned rule that wherever the admitted or established facts are such that the ordinary natural inference immediately arising therefrom is that the injury in question was caused by the negligence of the defendant to such an extent that the admitted or proved facts tell their own clear and unambiguous sort of negligence on the part of the defendant, the maxim res ipsa loquitur applies to such a case. It is beyond question that where the above mentioned doctrine properly applies, a presumption is immediately raised against the defendant which must be repealed by the defendant".
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 19 / 25 (R) PW4 deposed that whatever construction is carried out on a petrol pump in regard to A site agreement it has to be as per approved plan and by the corporation. He also deposed that responsibility of the maintenance of petrol pump is also of the corporation. However, dealer in regard to A site agreement is entitled to operate the petrol pump and he also entitle to commission of sale proceed, so dealer is the custodian of asset of petrol pump. Defendant no. 2 have not produced the approved plan of construction of petrol pump. Further it is not in dispute that defendant no. 1 always remains on the petrol pump as he is the custodian of the same so any irregularity or anything which required for maintenance must have been reported by it to defendant no. 2 so that necessary maintenance can be done. The defendant no. 1 have failed to brought any evidence which suggest that he ever informed defendant no. 2 for carrying out any maintenance work to the wall which fall on the fateful day. In view of this, it is clear that petrol pump is exclusively under the ownership of defendant no.2 but it was under management and control of defendant no1. So both defendants cannot escape their liability.
SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 20 / 25 (S) The Local Commissioner vide his report Ex. DW1/P10 observed that "The wall is more than 25 years old . For a retaining wall of this type 8.0 ht. Above ground level, considering the angle of repose of earth as 30°, the thickness at the base should be about 4.0'. At site the thickness observed was only 9" & 13 ½" which is very much less and it can be concluded that the wall has not been designed properly".
The thickness of wall is very much less as required in hill area. The defendants have failed to lead any evidence to show that not only the wall of petrol pump was fallen but also the walls of some other properties were also fell down due to the rain held on fateful day. Defendants further failed to produce evidence regarding density of rain and speed of wind. So in these circumstances, the fall of wall tell its own story in raising the inference of negligence of both the defendants for fall of wall which caused injuries in the head of deceased which and thereby caused the death of deceased. In view of this discussion, I am of consider opinion that the doctrine of res ipsa loquitur applies in the fact and circumstances of the instant case. SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 21 / 25 (T) In view of aforesaid discussion, I am of the considered opinion that plaintiffs have established that defendants were negligent and careless in maintaining petrol pump whose wall was fallen down due to rain and thereby deceased received injuries in his head and he died due to that injury. Accordingly, all the three issues are decided in favour of plaintiffs.
Issue No. 4.
A) Now it is to be seen what pecuniary loss suffered by the plaintiffs due to death of deceased in a fatal accident caused due to negligence of defendants on 2271991. B) PW2 deposed that her husband was 43 years of age and he was doing the business of repair of Air Conditioners since 1972. PW4 Tax Assistant of Ward no. 31(3) proved the intimation of deceased regarding his annual income i.e., Rs. 36,394/ for the Assessment year 199091 as Ex. PW1/1. Further PW1 deposed that his deceased son may have earned Rs. 5000/ per month. PW3 the business partner of deceased deposed that decease was 43 years old at the time of his death, he was very good of his health. PW3 also deposed during his cross examination that at the relevant time they both are earning Rs.50,000/ each annually. SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 22 / 25 (C) It is not in dispute that deceased was died on 2271991, and his income for previous year i.e., 1990 shown as Rs. 36,394/ per annum Ex. PW1/1. Further it is clear from the testimony of PW1, PW2 and PW3 that deceased was 43 years of age at the time of his death and he was earning Rs. 50,000/ per annum in the year i.e., 1991 when he was died. (D) In the State of Karnataka and Others, Vs Lalita and Ors, 2001 AIR Karnataka 485, Hon'ble High Court held that "the method of assessment of compensation in a suit filed under the Fatal Accident Act is not the same as calculated for compensation in claim petition arising under the Motor Vehicle Act and as the contents of provision of section in these two acts are not same.
Further the trial court has rightly applied the principle of common law of loss and gain. It has rightly proceeded to ascertain the pecuniary loss suffered by the claimants due to the death of Narasappa.
Narasappa was born on 8101947 and he suffered death in a fatal accident due to SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 23 / 25 the negligence of defendants on 1151987. Wherefore, he was aged about 40 years on the date of accident. Having regard to the life expectation prevalent, age of longevity, the age of 65 years taken as the age up to which Narasappa would have lived is reasonable".
(E) By applying the principle of common law of loss and gain, the pecuniary loss suffered by the plaintiffs would be the amount which deceased would have contributed to the family, which has taken as 2/3 of his income after rd deducting 1/3 rd towards personal expenses. Admittedly, deceased was doing his own work in partnership with PW3 regarding repair of Air conditioners. The deceased was 43 years of age on the date of accident having regard to the life expectation prevailing age of longevity, the age of 67 years taken as the age up to which Sh. Manohar Khubchandani the deceased have lived is reasonable. So he had still 24 years to work.
(F) It is pertinent that amount of earning Rs. 50,000/ per annum in the year 1991 would not remain the same through out the carrier. He would have earned more in his business after passing of time, but it is also equally true that after SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 24 / 25 passing of time the working performance would not be remained the same due to growing age and physical condition of deceased, as the job of air conditioner require physical labour. So in view above, I am of considering opinion that deceased would live upto the age of 67 years and he would be earned Rs. 12,00,000/ approximately in total i.e., @ Rs. 50,000/ per annum. Out of this amount, 1/3 amount of the same i.e., Rs. 4,00,000 is deducted rd towards his personal expenses and balance of 2/3 rd amount deceased would have contributed to family is treated as pecuniary loss amounting to Rs. 8,00,000/. (G) In view of aforesaid discussion, issue no. 4 decided accordingly.
Relief
14) In view of my aforesaid finding, a decree of Rs. 8,00,000/ with cost is passed in favour of the plaintiffs and against the defendants. The plaintiffs will be entitled interest @ 6 % from the date of judgment till the payment is made.
15) Decree Sheet be prepared accordingly.
ANNOUNCED IN OPEN COURT (RAVINDER SINGHI) TODAY 15TH DAY OF DECEMBER, 2014 ADDL. DISTRICT JUDGE08 (CENTRAL)/ TIS HAZARI/DELHI SUIT NO. 456/14 Neetu Khubchandani vs Sethi Auto Service Station 25 / 25