INDRAWATI v. SITAL GIR — 1980 DIGILAW 294 (DEL)

Sachar, J. ( 1 ) THIS is an appeal against the order of the learned single Judge in a claim for compensation made by the appellants (the heirs of the deceased) under the Motor Vehicles Act. ( 2 ) THE accident took place on 30-5-1962. The deceased was said to be travelling in a DTU bus when the accident took place. The allegation was that the bus was being driven very fast and when it reached near the round up it did not slow down and took a fast turn with the result that the deceased was thrown out and hit against the electric pole and though he was removed to the hospital he could not survive and died. ( 3 ) THE deceased was carrying on the private business of an electrician and he was having a shop. The Motor Accidents Claims Tribunal found and which finding was affirmed by the learned single Judge that the accident and the death of the deceased was due to the rash and negligent driving on the part of the driver of the bus. No cogent argument could be urged against it. We find no reason to take a different view from the finding of the courts below and would affirm it. ( 4 ) THE next question is as to what amount of compensation the appellants are entitled. In order to prove the loss suffered by the family of the deceased oral evidence was given to the effect that the deceased used to give Rs. 400. 00 per month on an average to the family. Evidence was also led to show that for the assessment year 1960-61 the assessment was made on an income of Rs. 10,137. 00 and for the assessment year 1961-62 on an income of Rs. 5,299. 00. The Tribunal took the income at Rs. 5,299/. and deducting therefrom a sum of Rs. 1,500. 00 on account of business and Rs. 1,880. 00 on account of the personal expenses of the deceased, he found the net loss to the family at Rs. 2,000. 00 per annum. Applying the multiplier of 13 years the figure came to Rs. 26,000. 00. He made further deduction of one thousand on account of accelerated succession to the house and making a further deduction of 10% on account of lump sum payment he awarded a sum of Rs. 22,500. 2,000. 00 per annum. Applying the multiplier of 13 years the figure came to Rs. 26,000. 00. He made further deduction of one thousand on account of accelerated succession to the house and making a further deduction of 10% on account of lump sum payment he awarded a sum of Rs. 22,500. 00 in all to the claimants. Both the claimants and the DTU filed appeals. As stated already the finding that the death was caused by the negligence of the respondents was upheld by the learned single Judge. ( 5 ) AS regards the income of the family the learned Judge differed with the Tribunal. He took the average of 2 years assessment orders and arrived at a figure of Rs. 7,718. 00 to be the income of the business of M/s Prince Electric Works which was run by the deceased. Evidence was also given before him that one other business called Gupta Electric Works had also been started by the deceased in April, 1962. The learned Judge calculated the income of the said business at Rs. 4,810. 00 per annum and made a total of Rs. 12,528. 00 per annum of both businesses. The learned Judge further held that as this business was being assessed as an HUF business and if the family business was to be partitioned the share of the deceased would be 1/6th (4 sons and wife) namely Rs. 2,088. 00 per annum out of which Rs. 900. 00 per annum would be his personal expenses and he, therefore, rounded up the balance at Rs. 1,200. 00 per annum as the financial loss to the family, and applying the multiplier of 16 (instead of 13) he arrived at a figure of Rs. 19,200. 00 and reducing it by 3% on account of lump sum payment he reduced the amount to Rs. 18,624. 00 from Rs. 22,500. 00 awarded by the Tribunal. ( 6 ) THE claimants being aggrieved have come up in appeal. The only question that we have to decide is whether correct principles of law have been applied in assessing compensation or not. 18,624. 00 from Rs. 22,500. 00 awarded by the Tribunal. ( 6 ) THE claimants being aggrieved have come up in appeal. The only question that we have to decide is whether correct principles of law have been applied in assessing compensation or not. ( 7 ) IN our view the learned Judge when he added the income on account of the firm M/s. Gupta Electric Company by assuming it to be the same as the average income of the two assessment years from the income of electric section of Prince Electric Works acted on surmise and fell into an error. The business having started in April, 1962 and the death having taken place in May, 1962 there was really nothing to go by and no material on the basis of which it could be said what the income from this business would be. We, therefore, feel that the learned Judge had no justification to add up any income other than the income from the business of Prince Electric. ( 8 ) THE learned Judge also adopted a course of arriving at the financial loss to the family by dividing the said sum of Rs. 12,528. 00 by 1/6 on the analogy that if partition had taken place the share of the deceased would have been l/6th (there being 4 sons and one wife) other members of the family) and, therefore, it would only be Rs. 2,088. 00. Frankly we are unable to appreciate the logic of this process. It is common case that this business though for income tax purposes was being run as HUF business was really the business which was being carried on by the deceased himself and was really dependent upon his knowledge and his work and personal exertion. We say this because it is in evidence that the deceased s eldest son was only 20-21 years of age at the time of his death and was a student of B. Sc. and other sons were students in the lower classes, some even in school. It is evident that the contribution of the sons to the earning from this business could not be very substantial. The main prop of the earning was really the efforts and the energy of the deceased. In our view this process, and we say so with great respect, was an irrelevant one. It is evident that the contribution of the sons to the earning from this business could not be very substantial. The main prop of the earning was really the efforts and the energy of the deceased. In our view this process, and we say so with great respect, was an irrelevant one. The income derived from the electric goods business was not in the shape of a rental income or a fixed dividend income and which was being appropriated by the other members of the family during the life time of the deceased also. It is only in a case where the income of the Joint Hindu Family was being appropriated separately by the other members of the family and one of the members dies that his share could be said to be the basis for working out financial loss to the other members of the family. In the present case deceased was, apart from also being the karta of the family, really the sole earning member. In the normal course without him the business would collapse. It is a different matter that there is evidence to show that the business did continue by the surviving sons but that is not to say that the loss has to be worked out by dividing the average income by 3/6. It is also not correct to say that no loss has occurred to the children because they were only average students. The loss of a father when children are even of school going age, the loss of any future education and the awesome responsibilities thrust on them at this tender age cannot be said to be matters of indifference. The correct test, we feel, was to take the average income of the two years for the Prince Electric which showed an average of Rs. 7,718. 00 per annum. We must, therefore, proceed on the basis that the average income of the business was an amount of Rs. 7,718. 00 and then try to calculate what is the financial loss to the family by the death of the deceased. Oral evidence was given that Rs. 400. 00 per month was the amount which was being contributed by the deceased to the family. This evidence finds support and plausibility from the average income of the family as shown by the two assessment years. We would, therefore, accept that Rs. 400. Oral evidence was given that Rs. 400. 00 per month was the amount which was being contributed by the deceased to the family. This evidence finds support and plausibility from the average income of the family as shown by the two assessment years. We would, therefore, accept that Rs. 400. 00 per mensem was the amount which was being paid by the deceased to the family. Mr. Dhir of course would have us take this amount of Rs. 400. 00 as the amount which is the financial loss to the family. Mr. Vats naturally took the extreme step of suggesting that as the business had continued in the hands of sons there was in fact no loss at all to the family. We cannot accept Mr. Vats s suggestion that the income continued as before of the business. Mr. Vats did make a grievance that the subsequent years s assessment has not been produced to which Mr. Dhir replied that if they showed the same assessment it was even open to the respondent to have produced the income-tax returns to show that the business had continued to earn the same amount during the life time of the father. In our view the probabilities of the case considering the raw age of the children and also considering the personal nature of the small electrician it is normal and natural to expect that there would have been a big fall in the earning of the business after the death of the deceased. On an overall view and in view of the oral evidence we are inclined to accept that the deceased was contributing Rs. 400. 00 to the family every month. We may deduct out of it Rs. 100. 00 which he must be spending out on him, which leaves a balance of Rs. 300. 00 per month as the contribution of the deceased to the family. This would work out to an average of about Rs. 3,600. 00 per annum. The multiplier of 16 which has been applied by the learned single Judge seems to us to be reasonable. This was the multiplier which was applied in the latest Division Bench case of this court in Dewan Hari Chand and others v. Municipal Committee of Delhi and others1. 3,600. 00 per annum. The multiplier of 16 which has been applied by the learned single Judge seems to us to be reasonable. This was the multiplier which was applied in the latest Division Bench case of this court in Dewan Hari Chand and others v. Municipal Committee of Delhi and others1. As a matter of fact the Supreme Court has even applied the multiplier of 20 in Madhya Pradesh State Road Transport Corporation, Bhopal v. Suhakar and others2. We would, however, apply the multiplier of 16. Applying the multiplier of 16 the total would come to about Rs. 57,600. 00. But keeping in view the lump sum payment and also the fact that the business is running and is not a total loss and giving some adjustment for that we find that the financial loss to the family can be reasonably placed at Rs. 50,000. 00. We would, therefore, allow the appeal and enhance the compensation awarded to Rs. 0,000. 00. The learned single Judge had awarded Rs. 18,624. 00. There would, therefore, be an increase of Rs. 31,376. 00. Mr. Dhir tells us that in pursuance of the Tribunal s award appellants have already received Rs. 22,500. 00 but when the High Court reduced it to Rs. 18,624. 00 he gave a bank guarantee of Rs. 3,876. 00 for the difference. Now that we have increased the amount the appellants are entitled to be paid the balance of Rs. 21,5001: This amount will be paid by the respondents within a period of one month from today failing which it will carry interest @ 9% till it is paid. The bank guarantee for 3,876. 00 given by the appellant will now stand discharged. The appellant will have his costs in the appeal.