Sheelawati v. Delhi Transport Corporation — 1990 DIGILAW 970 (ALL)

Judgment K. K. Birla, J. 1. Both these F. A. F. Os. arise out of the same award given by the Motor Accident Claims Tribunal and are being disposed of by a common order. 2. Sri Rajeshwar Prasad Tyagi was employed as Sub-Station Attendant in the Hydel Department Ghaziabad, U. P. At about 4.00 P.M. on 28-10-77, while he was going to attend to his duties, he met with an accident by Bus no. DHP 2470 driven by SRI Prakash respondent no. 2 owned by Delhi Transport Corporation and died on the spot Smt. Sheelawati is the widow and petitioners no. 2 to 5 are the minor daughters and sons of the deceased. They have preferred the claim. According to the claimants' case Sri Rajeshwar Prasad Tyagi was coming on the bicycle on the Patri of the road from the Meerut side while the bus was going towards Meerut side and the driver tried to overtake a Motorcycle by driving at high speed. In the process it hit the cycle and dragged the deceased and the cycle to some distance resulting in the death of Sri Rajeshwar Prasad Tyagi on the spot. The claimant filed a claim of Rs. 2,35,000/-. The Tribunal found the accident on account of rash and negligent driving by the driver. This finding has not been challenged before us. After considering the evidence and the circumstances of the case, the Tribunal found that the amounts payable to each of the claimants would be as given below : 1. Smt Sheelawati Rs. 31610-5268=Rs. 26342.00 2. Km. Manjoo Rs. 12106-2017=Rs. 10089.00 3. Km. Baby Rs. 15442-2573-Rs. 12869.00 4. Master Titu Rs 15442-2573=Rs. 12869.00 5. Km. Anjoo Rs. 19612-3268 =Rs. 16344.00 Total Rs. 78513.00 He accordingly passed an award dated 21-5-80 granting these amounts along- with the interest at the rate of 6 per cent per annum from the date of the judgment till the date of payment. Being aggrieved by this award the claimants have preferred F. A F. O. No. 573/80 and Delhi Transport Corporation F. A. F O. No. 673/1980. 3. After taking into consideration what amount he would have got at the time of the retirement, the learned Tribunal held annual Income to be Rs. 5009.10. The family consisted of himself, his wife, unmarried minor daughters and unmarried minor son. He divided the amount by six. 3. After taking into consideration what amount he would have got at the time of the retirement, the learned Tribunal held annual Income to be Rs. 5009.10. The family consisted of himself, his wife, unmarried minor daughters and unmarried minor son. He divided the amount by six. Thereby, according to the Tribunal, 5/6 Income was to be spent equally on each of the claimants (that is Rs. 834.00 per annum). He was further of the opinion that Km. Manju, Km. Baby, Km.Anju and Master Titu were to get the benefit for 9, 13, 18 years respectively. He further awarded Rs. 4000/- as marriage expenses for each child. According to him, Smt. Sheelawati Devi might have got the benefit for 24 years during the service of the deceased and for 12 and half years thereafter. He also awarded Rs. 600/- per claimants on another ground. The period for which each of the claimants were to be benefited in case the deceased remained alive has not been challenged nor the award of Rs. 4600/- per claimants on two counts as mentioned above has been challenged before us. According to the Corporation the amount of Insurance, gratuity, pension etc. should have also been taken into consideration and the compensation should have been reduced. This contention was not accepted by the Tribunal. The Tribunal reduced the l/6th of the compensation amount on account of lump sum payment. After calculating the compensation in the light of the above, the Tribunal found each of the claimants to be entitled to the amount as mentioned above. 4. In F. A. F. O. No. 578/1980 preferred by the claimants, it has been contended that Smt. Sheelawati Devi, widow was deprived of the company of her husband and as such the amount by way of loss of consortium should have been granted Rs. 50,000/- has been claimed in the petition towards the same. The other contention was that the interest should have been awarded from the date of the petition and not from the date of judgment. The Delhi Transport Corporation (hereinafter referred as the Corporation) has challenged the award mainly on three grounds namely : firstly that the amount of insurance, gratuity, provident funds etc. The other contention was that the interest should have been awarded from the date of the petition and not from the date of judgment. The Delhi Transport Corporation (hereinafter referred as the Corporation) has challenged the award mainly on three grounds namely : firstly that the amount of insurance, gratuity, provident funds etc. should have been considered and the compensation amount' should have been accordingly reduced, secondly that the claimants would have spent half of the Income on himself and as such the deducation of 1 /6th income only on that account is wrong and thirdly that atleast 1/3rd deduction should have made on account of lump-sum payment. We have heard the learned counsel for the parties and perused the records. 5. In the petition Rs. 50,000/- has been claimed for loss of consortium. No amount has been awarded by the Tribunal. This matter has not been at all considered by him. IN our opinion, it is quite established that in case of the death of one spouse, living spouse is entitled to compensation for the loss of consortium. Such compensation has been awarded in the cases of National Insurance Co. Ltd. v. Tulsi Devi, 1988 (Vol. II) ACJ 962 and Sohan Lal v. Bal Swaroop Bal Bhatnagar, 1987 (Vol. I) ACJ 113, therefore some compensation should have been awarded under this head. The amount will vary according to the facts and circumstances of each case. Considering the facts of the case and the age of the deceased, we are of the opinion that Rs. 10,000/- should be awarded as compensation under this head to Smt. Sheelawati Devi. 6. As regards the question of interest under section 110-CC of the Old Motor Vehicles Act 1939 the interest admissible was from such date not earlier then the date of making the claim. In the instant case the accident took place in October, 1977. There appears no reason why the interest should have not been awarded from the date of the petition, we therefore, find that interest should have been awarded from the date of the petition and not from the date of the judgment. In the instant case the accident took place in October, 1977. There appears no reason why the interest should have not been awarded from the date of the petition, we therefore, find that interest should have been awarded from the date of the petition and not from the date of the judgment. The contention of the learned counsel for the Corporation is that on account of the death of the victim the claimants have become entitled to the gratuity, Provident fund and Insurance money and as such this amount will amount to the benefit derived by the claimants on account of death of Sri Rajeshwar Prasad. In our opinion the contention of the learned counsel for the Corporation cannot be accepted. The learned Tribunal has itself cited some cases that is : Damyanti Devi v. Sita Devi, 1972 ACJ (P and H), Bhag- wanti Devi v. Ish Kumar, 1975 ACJ 56 (Del.), Prem Devi Pandey v. Dayal Singh, 1976 ACJ 407 , in which deduction on account of gratuity pension, Provident fund and Insurance was not allowed. Therefore, the contention raised on behalf of the respondent is without any force. Moreover, the matter also stands concluded by the Supreme Court decision in the case of Saminder Kaur v. Union of India, 1987 (Vol. I) ACJ 7. In this case it his been held that : "Family Pension : The widow of a Government employee would be entitled to family pension under the service conditions. We do not think that it is a benefit received by the widow and the wrong-doer should be allowed to take advantage of the family pension and gain by it. Provident Fund, Pension or Gratuity : Provident Fund, or pension, or gratuity are deferred payment of satisfactory service, savings and contributions of the deceased employee-These amounts his family would have in any case been entitled to get whether the employee died a natural death or died in an accident. They ought not to be taken into consideration for determining the amount of just compensation as they can not be termed as pecuniary benefits. Life Insurance : Payment received for life insurance can not also be considered as a benefit received by the widow or dependants of the deceased. Insurance money was payable because premiums were paid by the deceased and a contract was entered into for such payment on death. Life Insurance : Payment received for life insurance can not also be considered as a benefit received by the widow or dependants of the deceased. Insurance money was payable because premiums were paid by the deceased and a contract was entered into for such payment on death. The tort-feasor can not be permitted to gain by the deduction of the insurance policy amount." We, therefore, find that the deduction as claimed by the Corporation on this ground was rightly rejected by the learned Tribunal. 7. The next point for consideration is whether the deduction of t /6th of the income towards the expenses incurred by the deceased on himself is proper or not. The Tribunal has relied on the case of Prem Devi Pandey v. Dayal Singh, 1976 ACJ 407 , wherein whole income of the family was divided equally amongst the members of the family of the deceased. However, in the case of Smt. Devki Devi Tiwari v. Raghunath Sahai Chatroth, 1977 AWC 629, half of the amount of the earnings was taken to have been spent by the deceased in maintaining himself. There can be no hard and fast rule in this regard. It is common knowledge that earning member, if in service in some office has to go to and come from the office. He has to spend several hours per day in the office. His personal expenses, what may be called as pocket expenses, will not only be more than the minor dependant but also more than the adult dependants. Therefore, normally to divide the whole income equally amongst the members of the family of the deceased may not be a proper criterion. In the instant case the family of the deceased consisted of himself, his wife and four minor children. The income was merely Rs. 417/- per month only. In the facts and circumstances of the case, therefore, in our opinion he must be spending about l/3rd of the income upon himself and he must be contributing 2/3rd of his come for expenses towards other family members. Therefore, his contribution towards each of the claimants would come to Rs. 668/- per annum. 8. Lastly the Tribunal has given a reduction of l/6th on account of lump-sum payment relying on the case of Sundari Dei v. Dilip Kumar Sabat, 1979 ACJ 84 Orissa. Therefore, his contribution towards each of the claimants would come to Rs. 668/- per annum. 8. Lastly the Tribunal has given a reduction of l/6th on account of lump-sum payment relying on the case of Sundari Dei v. Dilip Kumar Sabat, 1979 ACJ 84 Orissa. On the other hand, the contention of the learned counsel for the Corporation is that these deductions on this ground are generally allowed by the Courts from 25 percent to 30 percent. In the case Mohinder Kaur v. Manphool Singh, 1973 ACJ 515 30 per cent deduction was allowed on account of lump-sum payment. In the case of Sohan Lal (supra) 25 percent deduction was made on account of Jump sum payment. But the Division Bench did not allow this deduction on account of the fact that there had been a steep fall in the value of rupee and also there had been inflation and rise of prices. It has been held that thus it can be said that at one time the deduction of some amount from the compensation on account of uncertainties, of life and lump sum payment was considered proper but fall in the value of rupee and the rising inflation has let the courts to take a view that deductions should not be made from compensation payable to the claimants. It may be stated that the effect of rising prices and inflation is felt when the compensation payable is paid after a long time. In several cases the period between the date of the submission of the claim and the date on which the compensation is actually paid to the claimants is more than a decade, during which the economic situation in the country undergoes a vast change. If the compensation awarded is paid to the climants soon after the decision of the Claims Tribunal, then the effect of the fall in the purchasing power of the money will not be as deep rooted as it would be if the money is paid after ten years when the appeal is decided. Hence, some significance is to be attached to the time when the compensation is actually paid to the claimants after the submission of the claim." Thus again there can not be any hard and fast rule. The matter should be judged from the facts and circumstances of each case. Hence, some significance is to be attached to the time when the compensation is actually paid to the claimants after the submission of the claim." Thus again there can not be any hard and fast rule. The matter should be judged from the facts and circumstances of each case. In the instant case, the amount coming to the share of the claimants is not much. Four of the claimants were minor. The rate of interest awarded was 6 percent per annum only. In the circumstances we are of the opinion that no interference is called for in the deduction made on this account and the contention raised on behalf of the learned counsel for the Corporation is accordingly, rejected. The total compensation of each of the claimants calculated in the light of the above discussions will be as below : 1. Smt, Sheelawati Devi Rs. 37,626.00 2. Km. Manju Rs. 10,612.00 3. Km. Baby Rs. 12,684.00 4. Master Titu Rs. 12,684.00 5. Km. Anju Rs. 16,624.00 After deducting 1 /6th of the same for the lump sum payment and uncertainties of life this will come to as below : 1. Smt. Sheelawati Devi Rs. 31,354.00 2. Km. Manju Rs. 8,843.00 3. Km. Baby Rs. 10,570.00 4. Master Titu Rs. 10,570.00 5. Km. Anju Rs. 13,853.00 Total Rs. 75,190.00 ORDER 9. The appeals are partly allowed. The award passed by the Claims Tribunal is modified to the extent that the claimants shall be entitled to Rs. 75,190.00 (Rupees seventy five thousand one hundred and ninety only) as compensation from the Opposite party Delhi Transport Corporation together with interest at the rate of 6 percent per annum from the date of the petition till the date of payment in the proportion given below : 1. Smt. Sheelawati Devi Rs. 31,354.00 2. Km. Manju Rs. 8,843,00 3. Km. Baby Rs. 10,570.00 4. Masier Titu Rs. 10,570.00 5. Km. Anju Rs. 13,853.00 Rs. 75,190.00 10. A copy of this judgment be placed on the file of F. A. F. 0. No. 673 of 1980.