Smt. Sarita Jain and Others vs Mohd. Zahid and Others

Reva Khetrapal, J.—This is an appeal u/s 173 of the Motor Vehicles Act, 1988 against the award dated 13.07.1998 passed by the Motor Accident Claims Tribunal, New Delhi in Claim Petition No. 515/1992 awarding a sum of Rs. 1,48,000/- (Rupees one lakh forty eight thousand only) with interest thereon, for the untimely demise of Sh. Parveen Kumar Jain in a motor vehicular accident, which took place on 04.05.1992.

The Appellants as legal representatives of the deceased had filed a claim petition on 12.08.1992 under Sections 166 and 140 of the Motor Vehicles Act, 1988 impleading the Respondents 1 to 3 as the driver, the owner and the insurer of the alleged offending tempo bearing No. DL-IL-3592, which had hit the two wheeler scooter of the deceased resulting in his sustaining fatal injuries. It was pleaded by the Appellants in the claim petition that the deceased was a businessman and his monthly income was Rs. 5,000/- (Rupees five thousand only) per month, that he left behind him a young widow, two minor children and his parents, and that the son and daughter of the deceased were studying in a public school.

The learned Tribunal after analysing the evidence, however, noted that in the petition it was nowhere clarified as to what was the nature of business being carried on by the deceased, except that it was in the name and style of M/s R.K. Traders and was situated at Loni Road, Shahdara. The learned Tribunal observed that given the fact that the deceased was alleged to have a permanent place of business and a firm functioning from the said place, the claimants should have made an effort to strictly prove the income of the deceased. The Tribuanl further observed that there was also nothing on record to prove the occupation of any business premises by the deceased, the nature of business had not been clarified and the books of accounts had not seen the light of the day and, as such, it would not be safe to accept the oral statement made by the wife of the deceased with regard to his earnings. The learned Tribunal accordingly held that it would be safer to go by the minimum wages payable around the relevant time and accordingly assessed the earnings of the deceased to be in the sum of Rs. 958/- (Rupees nine hundred fifty eight only) per month and in accordance with the dicta laid down by the Supreme Court in the case of Smt. Sarla Dixit and another Vs. Balwant Yadav and others, took the average income of the deceased to be Rs. 1437/- ( Rs. 958/- + Rs. 1916/- = Rs. 2874/- divided by 2). Deducting one-third (1/3rd) therefrom towards the personal expenses of the deceased, the loss of dependency was reduced to Rs. 958/- per month, to which the multiplier of 12 was applied. The total loss of dependency was, thus, calculated to be Rs. 958/- x 12 x 12 = Rs. 1,37,952/- (Rupees one lakh thirty seven thousand nine hundred and fifty two only). Further adding non-pecuniary damages under the various heads, a total sum of Rs. 1,48,000/- (Rupees one lakh forty eight thousands only) was awarded with interest at the rate of 12% per annum from the date of the filing of the petition till realization.

Aggrieved by the meagre amount of compensation awarded to them, the Appellants preferred the present appeal with an application for permission to lead additional evidence with regard to the income of the deceased, alongwith the original assessment order dated 31st March, 1989 passed by the Sales Tax Authority pertaining to the assessment year 1984-85, and a copy of the passport of the deceased. In view of the fact that the said documents were adjudged to be relevant and material for the determination of the issues involved in this appeal, the said application for adducing additional evidence was allowed by my learned predecessor by an order dated 4.3.2009.

Pursuant to the said order, an affidavit by way of evidence was filed by Smt. Sarita Jain, the widow of the deceased, who tendered the same in evidence as AW1/1 alongwith the Form of Order of Assessment u/s 23 of Delhi Sales Tax Act, 1975 and the Form of Order of Assessment u/s 9 of the Central Sales Tax Act, 1956 (Exhibit AW1/2 and Exhibit AW1/3). The witness was subjected to cross-examination by the learned Counsel for the Respondent No. 3, but her testimony emerged unshaken even after extensive cross-examination and, as a matter of fact, she reiterated in her said cross-examination that her husband was carrying on the business of General Merchant (Kiryana Business) and Commission Agent from Shop No. 1/4670-B, Balbir Nagar Extension, Loni Road, Shahdara, Delhi-110032, which premises he had taken on rent for the purpose of carrying on the aforesaid business. On a specific query put to her by the counsel for the Respondent No. 3, she stated that she was in possession of the rent-receipts of the said shop. She also reiterated that she had two children who were studying in Class VI and Class II respectively at the time of her husband''s death in ''Little Flower Senior Secondary School'', Shahdara, Delhi and a sum of Rs. 1,500/- per month was being spent on their education. The witness also confirmed that she knew that the firm M/s P.K. Traders was registered with the Sales Tax Department, but stated that she did not know if her husband was an income tax payee. She further stated that a plot had been purchased by her husband in her name in the year 1984, which was in her possession alongwith the sale-deed thereof. She categorically denied the suggestions put to her that her husband was not earning Rs. 5000/- (Rupees five thousands only) per month and that her children were not studying in an English medium school.

In the backdrop of the aforesaid testimony of the Appellant No. 1, the following contentions were raised by Mr. Nitinjya Chaudhary, the learned Counsel for the Appellants:

(i) The learned Tribunal erred in adopting the yardstick of minimum wages for assessing the loss of dependency of the Appellants and in rejecting the oral testimony of the widow of the deceased. The learned Tribunal ought to have assessed the income of the deceased to be not less than Rs. 5,000/- (Rupees five thousands only) per month, and thereafter assessed his average annual income after taking into account the future prospects of increase in the income.

(ii) The learned Tribunal erred in deducting one-third (1/3rd) of the income of the deceased towards his personal expenses. Keeping in view the fact that the deceased had five dependent family members, a deduction of not more than one-fourth (1/4th) was warranted towards the personal expenses and maintenance of the deceased.

(iii) In view of the fact that even under the Second Schedule of the Motor Vehicles Act, 1988, which lays down the indicia for the appropriate multiplier to be adopted for victims of different age-groups, the appropriate multiplier for the age-group of victims between 41 years to 45 years is the multiplier of 15, the learned Tribunal erred in applying the multiplier of 12 to the multiplicand constituting the loss of dependency of the Appellants.

(iv) The learned Tribunal awarded a very meagre amount towards the pecuniary and non-pecuniary damages and no amount whatsoever had been awarded towards the loss of love and affection of the deceased.

Adverting first to the aspect of assessment of the income of the deceased, I find that a bare glance at the assessment order dated 31st March, 1989 (Exhibit AW1/2) shows that the total registered sales of the deceased for the assessment year 1984-85 were in the sum of Rs. 2,83,770 (Rupees two lakh eighty three thousand seven hundred and seventy only) per annum or say Rs. 2,84,000/- (Rupees two lakh and eighty four thousand only) per annum or Rs. 23,666/- per month. Indisputably, there is nothing to suggest as to what was the profit margin of the deceased and the assessment of the profit margin can at best be ascertained by guess-work. However, keeping in view the fact that the deceased was carrying on kiryana business, in my view, his profit margin could not have been more than 10% after deducting the expenses of the business including rent, electricity and other charges. Thus, the income of the deceased for the purpose of loss of dependency of the Appellants at the time of his demise is taken to be in the sum of Rs. 2,366/- (Rupees two thousand three hundred and sixty six only) per month. With the passage of time, keeping in view the nature of the business of the deceased, the deceased would have in all probability increased his earnings by many times. However, keeping in view the law laid down by the Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, an addition of 30% is being made to the actual earnings of the deceased, the deceased being 42 years of age on the date of the accident, that is, in the age-group of 41 years to 50 years. The average annual income of the deceased is, thus, assessed to be in the sum of Rs. 36,912/- per annum ( Rs. 2,366/- + Rs. 710/- per month = Rs. 3,076/- per month x 12).

Keeping in view the fact that the deceased had left behind him five dependent family members including his widow, two school going children and his parents, in my view, a deduction of one-fourth (1/4th) instead of one-third (1/3rd) is warranted for the personal expenses of the deceased. I accordingly accept the contention of the learned Counsel for the Appellants in this regard. Thus calculated, the annual loss of dependency of the Appellants comes to Rs. 27,684/- (Rupees twenty seven thousand six hundred and eighty four only).

It is settled law that the aforesaid multiplicand must be augmented by an appropriate multiplier. In consonance with the judgment of the Supreme Court rendered in the case of Smt. Sarla Verma (supra), the appropriate multiplier for victims of the age-group between 41 years to 45 years of age is the multiplier of 14 and not the multiplier of 15 as set out in the Second Schedule to the Motor Vehicles Act, 1988. Calculated in the aforesaid manner, the total loss of dependency of the Appellants comes to Rs. 27,684/- X 14 = Rs. 3,87,576/- (Rupees three lakh eighty seven thousand five hundred and seventy six only).

After adding to the aforesaid amount of pecuniary compensation, the non-pecuniary damages in the sum of Rs. 5,000/- (Rupees five thousand only) towards the funeral expenses of the deceased, a sum of Rs. 10,000/- (Rupees ten thousand only) towards the loss of the estate of the deceased, a sum of Rs. 10,000/- (Rupees ten thousand only) towards the loss of consortium to the Appellant No. 1 and Rs. 10,000/- (Rupees ten thousand only) towards the loss of love and affection of the deceased, the Appellants are held entitled to receive a sum of Rs. 4,22,576/- (Rupees four lakh twenty two thousand five hundred and seventy six only) with interest at the rate of 7.5% per annum. Resultantly, the award amount stands enhanced by the sum of Rs. 2,74,576/- (Two lakhs seventy four thousand five hundred and seventy six only).

The Insurance Company shall deposit the enhanced amount within a period of 30 days from the date of passing of this order, failing which it shall be liable to pay interest at the rate of 12% per annum till the realization of the award amount. On the deposit being made, the learned Tribunal shall pass orders with regard to the apportionment and disbursement of the same to the Appellants.

The appeal is allowed in the above terms.

Records of the learned Tribunal be sent back to the learned Tribunal forthwith with a copy of this order.