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Chameli Wati and ors. Vs. Delhi Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 115 of 1977
Judge
Reported inAIR1982Delhi575; 21(1982)DLT245
ActsFatal Accident Act, 1955 - Sections 1-A; Income-tax Act - Sections 143(1); Motor Vehicles Act - Sections 110B
AppellantChameli Wati and ors.
RespondentDelhi Municipal Corporation and ors.
Advocates: A.K. Goel and ; S.P. Aggarwal, Advs
Cases ReferredMallett v. M. C. Monagle
Excerpt:
.....vehicles - compensation - section 110 b of motor vehicles act - appellants sought enhancement of compensation - tribunal awarded compensation of rs. 11500 by taking into account of period of dependency of 12 years taking into account life expectancy of 63 years and amount contributed by deceased to parents at rs. 1200 per annum - on basis of precedents life expectancy is taken as 70 to 75 years - period of dependency increased to 16 years on ground of uncertainties of life expectancy - appellant entitled to increased compensation at rs. 38522. - - the plea of the corporation, the delhi transport undertaking and the driver, who were the respondents before the tribunal, was that the brakes of the bus had suddenly failed and while trying to save the cyclist the driver, respondent no...........is its mode of assessment correct. the tribunal has found that the share of the deceased in the family income derived from the family business was only l/3rd. it appears that the compensation awarded is based on the conclusion that after spending rs.100.00 per month on himself the balance from his share of the income, which was being contributed by him for the upkeep of his parents, was rs.l200.00 pcryear. the tribunal was further found that his parents were likely to live for another 12 years. the compensation has been computed on that calculation, i.e. 12 years of expectancy of life of the parents multiplied by rs. 1200.00 per year. (13) according to the appellants herein the compensation amount ought to be enhanced to rs. 1,86,000.00 . to appreciate the submissions made, unrebutted.....
Judgment:

Charanjit Talwar, J.

(1) This judgment will dispose of F.A.O. No. 115 of 1977 filed by Smt. Chameli Wati and Kewal Ram, parents of Ramesh Chand, deceased, seeking enhancement of the compensation of Rs. 11,500.00 awarded to them by the Motor Accident Claim Tribunal, Delhi, and the Cross-objections (CM No. 2048 of 1977) filed by the Delhi Municipal Corporation (herein called 'the Corporation') challenging the finding that the accident resulting in the death of Ramesh Chand was due to rash and negli gent driving of the driver Ajit Singh who was driving the bus bearing registration No. Dlp 1 134 on 25th August, 1970, the date of the accident.

(2) Admittedly the bus which was being driven by Ajit Singh on 25th August, 1970, at about 7.30 p.m. on Kolhapur Road near Clock Tower, Sabzi Mandi, Delhi, had hit Ramesh Chand.

(3) The question for decision before the Tribunal was whether this accident resulting in the death of Ramesh Ghand occurred due to the rash and negligent act of the driver. The fact of the accident having taken place was not in challenge. That the deceased who was a young boy of about 25 years was on the right side of the road and that the bus in question after having hit a cyclist on the left side of the road suddenly swerved towards its right and hit the said boy was also not under challenge. The plea of the Corporation, the Delhi Transport Undertaking and the driver, who were the respondents before the Tribunal, was that the brakes of the bus had suddenly failed and while trying to save the cyclist the driver, respondent No. 3 had no other course open to him but to swerve the vehicle towards his right. In doing so, he hit the boy who was proceeding in the same direction on the extreme right side of the road. The boy was over-run as a result of which he died. After hiting the boy the bus came to a halt after colliding with a cart which was even further parked towards the right side of the road. The defense briefly was that the accident was an net of God which occurred due to the mechanical failure of the brakes and the respondent's were not responsible for the same.

(4) The Tribunal while negativing this defense pica of brake failure has held that the accident was due to rash, negligent act of respondent No. 3, Ajit Singh. The evidence on record conclusively supports this finding. Perma Nand (Public Witness 6) and Hem Chander (Public Witness 7) are the eye-witnesses to the occurrence. Testimony of Perma Nand brings out the callousness, negligence and the rashness of Ajit Singh driver while he was driving the vehicle in question. The witness was traveling in the said bus when the accident occurred. It is pertinent here to note that the respondents did not put any questions in cross-examination to challenge the following facts Which were brought out in his examination-in-chief:

'ONEperson who was intimate to the driver was talking to him. I felt that the bus was going to cause accident in front of Amba Cinema. I asked the driver to have some pity on us and drive the bus slowly. I also asked that person not to talk with the driver and be seated but he went on talking. When the bus reached near Clock Tower Subzimandi and took turn towards Kolhapur Road, the bus was at a fast speed at that time. The driver did not blow any horn. A cyclist struck against the bus just at the turning. That cyclist was going towards Kolhapur Road. The cyclist left the cycle and went towards left hand side while the bus turned towards right at a degree 50 to 60. A boy who was coming from that side was hit by the bus. The bus after striking the boy hit against a rehri. It had passed over the boy'.

(5) Hem Chander (Public Witness 7), another eye-witness, was going on foot on Kolhapur Road at that very time. He clearly stated that the bus was going at a high speed from Clock Tower side. After dashing against a cyclist, it turned toward* the right and ran over a boy. Thereafter it struck against a rehri and stopped.

(6) An effort in the cross-examination of this witness was to show that he was an interested witness as he is a resident of Sonepat, the place to which the deceased's family belonged. However, his testimony in examination-in- chief could not be demolished in any way.

(7) The statement of PermaNand(PW 6) clearly brings out that the driver was not only driving the vehicle at a fast speed in that crowded locality but in fact kept on talking to a friend of his at that moment and hit firstly the cyclist and thereafter while swerving the vehicle to his right ran over Ramesh Chand, the deceased. The respondents did not rebut this testimony by producing any one of the passengers who was traveling in the bus at that time. It appears that the bus conductor who could probably throw some light on the manner in which the accident took place, has been purposely with-held by the respondents.

(8) The plea of the respondents that the accident took place due to brake failure which was sought to be substantiated through the evidence of Shiv Gopal Saxena (RW 1) has not been established. This witness avers that he had inspected the vehicle Dlp 1134 on the morning of 25th August, 1970, and it was found by him to be road-worthy. This fact he could state because he had not mentioned any defect in this vehicle in the defect register. He further stated that after the accident he inspected the vehicle at the spot on that very day. In his own words, 'I found the brake pressure slightly leaking and due to that there could be brake failure. I inspected the vehicle and the brakes were not functioning.' The report, however, which he had made about the inspection of the vehicle, has not been proved. A copy of the same was placed on the record as document marked A. All that is stated in that report is that the brake pressure was slightly leaking from the rear right side at brake section. This document not having been proved cannot be looked at but it is curious that even in this report there is no mention that the brakes of the vehicle in question had failed. In my view, 'slight leakage in the brake pressure' does not categorically show that the brakes had failed.

(9) Another document purporting to corroborate this plea which was placed on the record being a report of the Depot Manager of Kalkaji Depot was also not proved by the respondents. I am, thereforee, ignoring the same from consideration.

(10) In view of the testimony of Perma Nand and Hem Chander,PWs 6 and 7 respectively, and in view of the unsatisfactory evidence, produced by the respondents in support of their case regarding the failure of brakes, I uphold the finding of the Tribunal that the accident occurred due to rash and negligent driving of respondent No. 3 and it resulted in the death of Ramesh Chand.

(11) Admittedly the deceased Ramesh Chand was unmarried. The petitioners Kewal Ram and Chameli Wati are his parents. By virtue of Section 1-A of Fatal Accident Act (VIII of 1955) the petitioners are his legal representatives. Accordingly, I uphold the finding of the Tribunal of issue No. 2, namely, 'whether petitioners are the legal representatives of the deceased ?'

(12) The next question which arises for consideration is whether the amount of compensation of Rs: 11.500.00 awarded by the Tribunal to the parents of the deceased is to be enhanced on the ground that the compensation is neither just nor is its mode of assessment correct. The tribunal has found that the share of the deceased in the family income derived from the family business was only l/3rd. It appears that the compensation awarded is based on the conclusion that after spending Rs.100.00 per month on himself the balance from his share of the income, which was being contributed by him for the upkeep of his parents, was Rs.l200.00 pcryear. The Tribunal was further found that his parents were likely to live for another 12 years. The compensation has been computed on that calculation, i.e. 12 years of expectancy of life of the parents multiplied by Rs. 1200.00 per year.

(13) According to the appellants herein the compensation amount ought to be enhanced to Rs. 1,86,000.00 . To appreciate the submissions made, unrebutted facts be noticed.

(14) The deceased was carrying on the business of commission agent in the name of M/s. Mansa Ram Kewal Ram at Kaithal Mandi (Haryana). It was the business of Hindu Undivided Family but was solely being looked after by him. Ramesh Chand deceased was unmarried and was aged 24/25 years, and after his death the said business had to be closed down. He had an elder brother who although a member of the Hindu Undivided Family was in employment, that the deceased was unmarried and, thereforee his parents, i.e., the appellants herein are the legal representatives of per Section 1-A of the Fatal Accidents Act, that firm was earning about Rs. 600.00 per month and that the firm Mansa Ram Kewal Ram had paid advance income- tax amounting to Rs. 415.00 during the year 1968-69. That apart from the income from this business the deceased had no other income. These facts are borne out from the testimony of Kewal Ram, father of the deceased who was one of the petitioners before the Tribunal and appeared as his own witness as Public Witness 12. He has admitted that the deceased was a member of the Hindu undivided Family. In cross-examination he has further admitted that the firm was earning Rs. 7000.00 to Rs. 9000.00 per year and that this income was the income of the family.

(15) It may be noted 'here that the income as evidenced from the assessment order of 1968-69 was not challenged by the respondents. After appraising the evidence, the Tribunal, however, found the income of the family from the said business was Rs. 500.00 per month. This finding cannot be sustained lor the following reasons.

(16) From the document Exhibit Public Witness 12/2 it is borne out that on 16th January, 1969, advance tax amounting to Rs. 415.00 had been paid on behalf of this firm. Copy of the assessment order for the year 1968-69 shows that the return for the assessment year 1968-69 had been filed on 19th October, 1968, prior to the death of deceased. The firm had been assessed under Section 143(1) of the Income-tax Act on a total income of Rs. 8670.00 . Number of documents showing that the firm was paying sales tax have also been filed and proved. As noticed above, Kewal Ram father of the deceased has stated that his son used to earn Rs. 7,000.00 to 9,000.00 per year. He admitted in crossexamination that the said income was the family income and this business had to be closed after about two months of the death of the deceased.

(17) It was not challenged in cross-examination that the income of the firm M/s. Mansa Ram Kewal Ram was not between Rs. 7,0001- to Rs. 9,000.00 as deposed to by Kewal Ram. This fact is also borne out from the assessment order referred to above. The respondents did not lead any evidence to prove that the income of the family from the said business was less than Rs. 7,000.00 . During arguments Shri S.P. Aggarwal learned counsel for the Corporation could not support from the record, the finding of the Tribunal that the monthly income of the said business was only Rs. 500.00 , i.e. Rs. 6,000.00 per annum. From the evidence on the record, it is safe to hold that the said income was Rs. 7,000.00 per annum, the minimum figure stated by Kewal Ram PW12. IS. In cross-examination of the father of the deceased it has been brought out that he rarely visited the shop at Kaithal and that the deceased was looking after this business. Rs. 100.00 per month were being spent by the deceased on personal expenses has also been established. thereforee, a sum of Rs. 1200.00 is to be deducted from the total income of Rs. 7,000.00 per ' year. The net income from this Hindu Undivided Family business accruing to the family thus comes to Rs. 5800.00 per year.

(19) According to the Tribunal, Kewal Ram petitioner was expected to live up to the age of 65 years and Chameli Wati, his wife, up to the age of 61 years. Kewal Ram on the date of his statement before the Tribunal on 16th September, 1975, was of 57 years of age. His wife was at that time 53 years old. The tribunal calculated the benefit of their dependency upon the deceased for a period of 12 years. Further, the monthly dependency of the two petitioners was assessed at Rs. 100.00 per month. .The basis for calculating it appears to be that out of the monthly income of Rs. 500.00 , the deceased was only entitled to receive l/3rd of that amount as the income was derived from the business run by the Hindu Undivided Family consisting of the deceased, his elder brother, and his father. Out of the said 1/3rd income after deducting the amount which was being spent by the deceased on his personal expenses, the monthly dependency of the appellants has been found to be Rs. 100.00 . As per this reasoning the Tribunal by calculating that dependency for a period of twelve years found the lump sum amount to be Rs. 14400.00 to which the appellants were entitled by way of compensation. By deducting 20% of this amount on account of accelarated payment the Tribunal has awarded a sum of Rs. I 1520.00 (Rs. 14400-2880 =l 1520), under Section 110B of the Motor Vehicles Act.

(20) Learned counsel for the appellants has challenged both the findings regarding (1) assessment of dependency and (2) period of dependency.

(21) At this stage, I may note that the parents of the deceased are still living. Kewal Ram father of the deceased is now over 63 years. Ghameli Wati, mother of the deceased, would be about 59 years. Kewal Ram was present in Court during arguments and he appeared to be keeping good health. It has been held by this Court that the life expectancy in India should ordinarily be now taken as 70 or 75 years. (See Smt. Nand Kaw v. Sukh Raj and others, : 20(1981)DLT75 . thereforee, the period of 12 years by way of dependency assessed by the Tribunal does not seems to have been based on an objective standard.

(22) The compensation to be just has to be proportionate to the loss resulting from death for the period of dependency of the legal representatives. There are two modes of computing it. One is to estimate the number of years which the deceased was expected to live and then find out as to how long would his legal representatives be dependent upon him during that period. By multiplying the net annual income actual or expected of the deceased with the number of years, the legal representative were expected to be dependent upon him, the amount of compensation is arrived at. Out of this figure, certain deductions are made. The balance is awarded to the legal representatives. In other words, 'the net annual equivalent of the bread-earning capacity is to be multiplied by the expectation factor' with certain legally permissible deductions, such as deduction on account of im- mediate lump sum payment, and on account of factors such as risk of incapacity or illness shortening the longevity of the deceased. In assessing the compensation by this mode the element of conjecture to some extent is in. herent. This is the mode adopted by the Tribunal while holding that the father of the deceased was expected to live up to the age of 65 years and the mother was expected to live up to the age of 61 years. However, to avoid an element of conjecture regarding the expectancy of life and to avoid numerous deductions another standard method for computing compensation has been suggested, by firstly finding out purchase of years of dependency based on a set principle. The period of dependency so assessed is multiplied by the annual income and that amount is awarded as compensation without any deduction for accelerated payment. The guidelines for that mode provided by Lord Diplock in Mallett v. M. C. Monagle, 1969 Acc Cj 312 (House of Lords), in which case the deceased was a young man in his twenties, to the effect, 'Courts have not infrequently awarded 16 years' purchase of the dependency. I til seldom that this number of years purchase is exceeded. It represents the capital value of an annuity certain for a period of 26 years at interest rates of 4 per cent; 29 years at interest rates of 4' percent or 33 years at interest rates of 5 per cent. Having regard to the uncertairitifs to be taken into account 16 years would appear to represent a reasonable maximum number of years' purchase where the deceased died in his twenties. Even if the period were extended to 40 years, i.e., when the deceased would have attained the age of 65, the additional number of years' purchase at interest rates of 4 per cent would be less than four years, at 41 per cent would be less than 21 years and 5 per cent would be little more than one year', have been authoritatively settled by a Division Bench of this Court in Dewan Hari Chand others v. Municipal Committee of Delhi and others, Air 1981 Delhi 71.

(23) There is no doubt that by this mode of assessment the period of expectancy would be shorter than the number of years which the deceased, a young man of 24 years, was expected to live. But this mode is simpler apart from being comparatively more scientific, it does not involve numerous arithmatical calculations regarding the deductions to be made by way of acceleration of payment of the compensation in lump sum.

(24) In the facts of this case, I hold the dependency of the appellanta to be 16 years and not the one held by the Tribunal namely, 12 years.

(25) In his cross examination, Kewal Ram, father of the deceased has admitted that within two months of the death of the deceased the said family business had to be closed. Obviously, Ramesh Chand was the person who was running and looking after this business on behalf of the Hindu Undivided Family. The earning capacity of the deceased was Rs. 5800.00 annually after excluding his personal expenses of Rs. 1200.00 per year. This amount included his own 1/ 3rd share but that share alone cannot be made the basis for computation. In these proceedings it is the earning capacity of the deceased which has to be ascertained and not only his share. It is the pecuniary loss of the legal representatives because of his death which has to be kept in mind while assessing compensation. However, the elder brother of the deceased who was admittedly a member of the Hindu Undivided Family, is not a legal representative of the deceased. The benefit from the income of the family business which was accruing to him from it has to be excluded. thereforee, it is only 2/3rd of the annual income of Rs. 5800.00 which can be considered the net annual equivalent of the earning capacity of the deceased which was available jointly to his parents who are his legal representatives.

(26) Now multiplying 16 years purchase of dependency with 2/3rdof Rs. 5800.00 the amount comes to Rs. 61856.00 (Rs. 3866x16). It is on record that on close of the family business after the death of Ramesh Chand, Kewal Ram received Rs. 35,000.00 on selling the business. Admittedly l/3rd of this amount being Rs. 11666.00 is the share of the elder brother of the deceased.. Consequently Rs. 23334.00 being 2/3rd of the share from the amount received on closing of the business has to be deducted from the total amount of Rs. 61856.00 , as this benefit was gained by the parents on account of the death of their son Ramesh Chand. The net compensation, thereforee, comes to Rs. 38522.00 (Rs. 61856-Rs. 23S34.00 ).

(27) Learned counsel for the appellant urged that interest on this compensation may be awarded from the date of application. The Tribunal has awarded future interest only. In my view that finding cannot be assailed as the award of interest has not been statutorily provided for in the Act from the date of application.

(28) The result is that cross-examination filed by the respondents are dismissed. The appeal is partly allowed. I order that the respondents shall pay to the claimants the amount of Rs. 38522.00 by way of compensation with interest at 6 per cent till realisation with costs.


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