Anita Aggarwal and Ors. v. Lal Chand and Ors.

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest? JUDGMENT (ORAL): REVA KHETRAPAL, J.

1. This appeal is directed against the judgment and award dated 14.09.2005 passed by the Motor Accidents Claims Tribunal awarding 2011:DHC:3869 to the appellants compensation in the sum of ` 4,53,000/- payable by respondents No.3 and 6 along with interest at the rate of 6% per annum from the date of the filing of the petition till payment.

2. The facts relevant for the decision of the appeal are that on 25.05.1999, one Shiv Kumar Aggarwal was travelling by TATA Sumo from Delhi towards Khatu Shamji. The said TATA Sumo was hit by a jeep bearing No.RJ-14-C-4586 from the front side driven by the respondent No.1 in a rash and negligent manner. At the same time, a mini bus bearing No.RJ-14-P-6534 also hit the TATA Sumo resulting in the death of several persons travelling in the vehicle, including the said Shiv Kumar Aggarwal. The alleged offending jeep was insured with the respondent No.3, M/s. Oriental Insurance Company Limited while the offending mini bus was insured with the respondent No.6, M/s. United India Insurance Company Limited. The respondent No.2 was the owner of the jeep and the respondent No.5 was the owner of the offending mini bus, both of which hit the TATA Sumo one after the other.

3. The Motor Accidents Claims Tribunal after conducting an enquiry under the provisions of Section 166 of the Motor Vehicles Act, 1988 held the respondent No.3 and the respondent No.6, the insurers of the jeep and the mini bus respectively, equally liable to pay the award amount. For the purpose of assessment of the loss of dependency of the appellants, the learned Tribunal assessed the income of the deceased to be in the sum of ` 2,350/- at the time of his untimely demise on the basis of the minimum wage rate applicable to an unskilled workman in May, 1999, that is, on the date of the accident. The Tribunal then concluded that had the deceased not died a premature death, there was bound to be an increase in his income. Applying the law laid down by the Hon’ble Supreme Court in the case of Sarla Dixit vs. Balwant Yadav, AIR 1996 SC 1274, the learned Tribunal assessed the average income of the deceased by adding his actual income at the time of his death and his future income and dividing the sum total by two, that is, ` 2,350/- (actual earnings) + ` 4,700/- (future earnings) ÷ 2 = ` 3,525/- per month. From the said gross monthly income, one-third was deducted by the learned Tribunal on account of the personal expenses of the deceased and the balance was assessed to be the loss of dependency of his family members, that is, ` 2,350/-. The Tribunal then went on to state that the multiplier applicable to the age of the deceased, who was 44 years of age on the date of his death, was the multiplier of 15 as per the II Schedule of the Motor Vehicles Act, 1988. Hence, the total loss of dependency was ` 2,350/- x 12 x 15 = ` 4,23,000/-. To the aforesaid pecuniary compensation, the Tribunal added a sum of ` 30,000/- on account of funeral expenses, loss of love and affection and consortium and, accordingly held the claimants to be entitled to a total compensation of ` 4,53,000/-, including the amount of the interim award.

4. Aggrieved by the aforesaid award of compensation, the present appeal has been preferred by the appellants, who are the legal representatives of the deceased, on the ground that the manner of computation of compensation is wholly unjustified and unwarranted.

5. Mr. Navneet Goyal, the learned counsel for the appellants, vehemently contended that the Tribunal ought not to have brushed aside the statement made on oath by PW[3] Anita Aggarwal, who categorically stated that her husband owned a truck bearing No. DL- 1GA-9523, and was engaged in transport business and used to transport building material, earning therefrom a sum of ` 10,000/- per month. After the death of her husband, she stated that the said truck had been transferred in her name, but as she could not manage the business, the driver of the truck, to whom her husband was paying a monthly salary of ` 4,000/-, left the job. Mr. Goyal pointed out that the testimony of PW[3] Anita Aggarwal had emerged unscathed after extensive cross-examination by the counsel for the respondent No.6 and there was, therefore, no reason for the Tribunal to have disbelieved the same. Mr. Goyal also contended that the deceased was an educated person which was clear from the fact that PW[3] Anita Aggarwal had stated in the witness-box that her husband had passed the Second year of graduation. Not even a suggestion was put to this witness that her husband had never been enrolled for the graduation course. Mr. Goyal contended that in any case, merely because the deceased was not an income-tax payee was not sufficient justification for the Tribunal to equate his earnings with those of an unskilled workman.

6. Mr. Ram N. Sharma, the learned counsel for the respondent No.3 and Mr. K.L. Nandwani, the learned counsel for the respondent No.6, on the other hand, contended in one voice that in view of the fact that there was a total dearth of documentary evidence on record with regard to the earnings of the deceased and in view of the further fact that it stood established on record that the deceased was not an income-tax payee, no error was committed by the learned Tribunal in assessing the income of the deceased on the basis of the minimum wage rate applicable in Delhi at the time of the accident. Both counsel sought to support the award and urged that no enhancement was called for in the facts and circumstances of the case.

7. There is no manner of doubt that the appellants have not been able to establish on record the actual earnings of the deceased. Nevertheless, I find force in the contention of Mr. Goyal that the earnings of the deceased, who was admittedly carrying on a transport business, cannot be equated to those of an unskilled workman on the date of the accident. I am fortified in coming to the aforesaid conclusion from the fact that it stands established on the record from the testimony of PW[1] Mahesh Chand, an official from the Regional Transport Authority, Rajpur Road, Delhi that the truck No.DL-1GA- 9523 was registered in the name of the deceased Shiv Kumar on 09.02.1996 and it remained registered in his name till the date of his demise on 25.05.1999. Thereafter, on 25.08.1999 it was transferred in the name of the appellant No.1, viz., PW[3] Anita Aggarwal on account of the death of the deceased. This fact lends support to the statement of PW[3] Anita Aggarwal made on oath before this Court that her husband was in transport business and was transporting building material for which he owned truck No.DL-1GA-9523.

8. As regards the quantum of the earnings of the deceased, undoubtedly it is a difficult task to assess the same in the absence of any documentary evidence on record. However, I am of the view that since it stands established on record that the deceased was engaged in transport business, the learned Tribunal ought not to have assessed the earnings of the deceased at par with those of an unskilled workman, more so as it is noted by the Tribunal that the deceased had engaged a driver to drive his truck and he himself was not holding even a driving licence to drive a commercial vehicle. Since the deceased had engaged a driver to drive his truck and the minimum wage rate applicable to such a driver would be that of a skilled workman, it would be wholly unjustified to assess the earnings of the deceased to be less than those of his driver. At the same time, without any documentary evidence on record, it is difficult to arrive at the conclusion that the deceased was earning ` 10,000/- per month. Had it been so, he should have been an income-tax payee. As noticed above, PW[3] Anita Aggarwal, the wife of the deceased, in the course of her cross-examination, in answer to a specific query put to her by the learned counsel for the respondent No.6, stated that her husband had passed B.A. Second Year. I see no reason to disbelieve her and accordingly deem it safe to assess the income of the deceased on the basis of the minimum wage rate applicable to a matriculate at the relevant time. Thus, the monthly income of the deceased at the time of the accident is assessed to be in the sum of ` 2,788/-, which may be rounded off to ` 2,800/-. Adding 50% to the said amount, the average monthly income of the deceased comes to ` 4,200/-, that is, ` 2,800/- per month (actual earning) plus ` 1,400/- per month (50% increase) = ` 4,200/- (Rupees Four thousand and two hundred only).

9. The next contention of Mr. Navneet Goyal, the learned counsel for the appellants, is that the learned Tribunal erred in deducting onethird of the income of the deceased towards his personal expenses and maintenance and that keeping in view the fact that the deceased had five dependent family members, a deduction of not more than onefourth towards his personal expenses was warranted. I find substance in this contention. The deceased had left behind him his widow, two minor children and his parents and in such circumstances, to my mind, he could not have been spending more than one-fourth of his income on his own expenses. Thus, deducting one-fourth from the income of the deceased, the annual loss of dependency of the appellants works out to ` 3,150/- (three-fourth of ` 4,200/-) x 12 = ` 37,800/- (Rupees thirty seven thousand and eight hundred only).

10. It was next contended on behalf of the appellants that the aforesaid multiplicand was appropriately augmented by the learned Tribunal with the multiplier of 15 for arriving at the net loss of dependency of the appellants. Indisputably, the multiplier for the age group of victims between 41 years and 45 years set out in the Second Schedule to the Motor Vehicles Act, 1988 is the multiplier of 15. However, the multiplier of 14 has been held to be the appropriate multiplier where the age of the deceased is between 40 years and 45 years in the judgment rendered by the Hon’ble Supreme Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121. In the said case, the Supreme Court has enjoined upon all the Courts and Tribunals, in the interest of ensuring uniformity in the dispensation of compensation claims, to follow the multipliers tabulated by the Supreme Court in the said case. Accordingly, the multiplier of 14 is adjudged to be the appropriate multiplier in the present case. Thus calculated, the total loss of dependency of the appellants comes to ` 37,800/- x 14 = ` 5,29,200/- (Five lakh twenty nine thousand and two hundred only). After adding the amount awarded by the learned Tribunal towards funeral expenses and non-pecuniary damages, the total amount of compensation thus works out to ` 5,59,200/-, which may be rounded off to ` 5,60,000/- (Rupees five lakhs and sixty thousands only).

11. The award amount is accordingly enhanced by ` 1,07,000/- (One lakh and seven thousand only). The enhanced amount of compensation shall be paid by the respondents No.3 and 6 in equal proportion within 30 days from the date of this order with proportionate interest at the rate of 7.5% per annum from the date of the institution of the petition till the date of payment. The enhanced amount shall enure to the benefit of the appellant No.1, the widow of the deceased.

12. The appeal is allowed in the above terms.