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2001 DIGILAW 700 (DEL)

SIMA DEVI BATRA v. RAJPAL

2001-12-04

S.N.KAPUR

body2001
S. N. Kapoor ( 1 ) IN an unfortunate accident, one Ram Dass, aged 24 years, died on 1. 6. 1986. Ram Dass, deceased was coming on his two-wheeler scooter No. DEH 4436 when he was hit by a Matador no. DEG 8725 driven by respondent No. 1 Rajpal. The said Matador was owned by ram Kumar, respondent No. 2 and it was insured with New India Assurance Co. Ltd. ( 2 ) THE grievance of the appellant is that firstly, income had been under-assessed at Rs. 1,500 per month. Secondly, the deduction had been made at the rate of 1/3rd, ignoring the size and members of the family of the deceased. Thirdly, the multiplier of only 14 years has been applied. ( 3 ) AS regards the income, no documentary evidence has been led. However, Seema Devi stated that the deceased was drawing Rs. 2,500 per month as a partner in Narain General Store. It was also claimed that the deceased had started immediately before his death a new unit by the name of Batra Plastics and was drawing a sum of Rs. 2,500 p. m. from the said firm. In addition, he was also earning about rs. 800 p. m. as commission being a commission agent in a chit fund company. But this is coming only from the mouth of the claimant, without producing any document excepting Exh. PW 4/a partnership deed of the firm Narain General Store, Azad market, between deceased and his father. In addition to this aspect, Seema Devi improved on the allegations made in the petition by alleging that the deceased was earning Rs. 800 p. m. as commission agent in a chit fund company. Obviously, it is an after-thought. Consequently, the learned trial court was justified in arriving at the conclusion that the deceased was having an income of Rs. 1,500 p. m. at the time of his death in 1986. ( 4 ) OF course, generally 1/3rd of the income is deducted on account of the personal expenses of the deceased. But, this is not an universal rule which should apply to each and every case. One has to look to the size of the family and then decide as to whether the deceased could have afforded to spend 1/3rd. In the family of the deceased, there was an young wife with two children, father and mother. But, this is not an universal rule which should apply to each and every case. One has to look to the size of the family and then decide as to whether the deceased could have afforded to spend 1/3rd. In the family of the deceased, there was an young wife with two children, father and mother. Father of the deceased as per Exh. PW 4/a was partner of the firm and thus he was himself earning. Thus, widow and two children were dependent on the deceased. If one unit is counted for the deceased and half unit for two children, the deceased could spend 1/3rd of the income on himself. Accordingly, i think it was appropriate to deduct 1/3rd of his monthly income. ( 5 ) LEARNED counsel for the appellants has rightly submitted that the Tribunal has failed to consider the future prospects of the deceased. It is submitted that minimum wage rates applicable to Delhi for the past two decades indicated that in 1985 it was rs. 560 for a non-matriculate and now it is Rs. 2,867. Accordingly, future prospects should be considered four times more than the monthly income on the date of death and compensation should be awarded accordingly. I would not like to go beyond the judgment delivered by Hon ble Apex court in the case of General Manager, kerala State Road Transport Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), in considering the future prospects, for there are many ifs and buts and uncertainties of life. ( 6 ) LEARNED counsel for the respondents submits that the case of General Manager, kerala State Road Trans. Corpn. v. Susamma thomas, 1994 ACJ 1 (SC), applies to a person who is in Government service and having a stable job. The question is not of stability only, but security of employment for many persons indulge in job hopping despite stability in service. Even in business, many persons change time and again to earn more and more. Could this court believe that a young man of 24 years who was earning Rs. 1,500 at the time of death had no future prospects especially when the minimum wages have risen more than fourfold? But, it would be taking things to another extreme if that increase rate is followed. This court is supposed to follow a moderate formula adopted in the case of General Manager, Kerala State road Trans. Corpn. 1,500 at the time of death had no future prospects especially when the minimum wages have risen more than fourfold? But, it would be taking things to another extreme if that increase rate is followed. This court is supposed to follow a moderate formula adopted in the case of General Manager, Kerala State road Trans. Corpn. v. Susamma Thomas (supra), for it takes care of future prospects coupled with interest to make up for a certain extent probable monetary loss. But money is not and can never be substitute for life. One has to take it that way. ( 7 ) ACCORDINGLY, the income of the deceased, i. e. , Rs. 1,500 be taken at Rs. 3,000 p. m. and after deducting /3rd towards the personal expenses of the deceased, the dependency would be Rs. 2,000 p. m. ( 8 ) AS regards the multiplier, seeing the second Schedule, age of the deceased, ages of the dependants, multiplier of 14 years is inappropriate. I raise it to 15 years. Calculating the amount on the aforesaid basis, it would come to Rs. 2,000 multiplied by 12 and 15 and it would come to Rs. 3,60,000. ( 9 ) THUS, the claimants are entitled to rs. 3,60,000 and the amount of compensation is enhanced accordingly. In addition to rs. 3,60,000, the appellants are also entitled to get a sum of Rs. 20,000, the amount spent on treatment of the deceased as well as Rs. 5,000 on the repair of the scooter. The claimants are also entitled to claim interest at the rate of 12 per cent per annum on the unpaid amount out of total amount of Rs. 3,85,000 from the date of petition till 31. 3. 2000 and thereafter at the rate of 9 per cent per annum on the unpaid. It is ordered 10 per cent of the total amount of compensation shall go to mother, 50 per cent to the widow and 20 per cent to the son and 20 per cent to the daughter. Out of total amount, to widow and mother 40 per cent may be paid, and 60 per cent may be deposited for a period of five years. As regards the amount of compensation awarded in favour of the daughter and son of the deceased, that shall remain in fixed deposit till they attain majority. Out of total amount, to widow and mother 40 per cent may be paid, and 60 per cent may be deposited for a period of five years. As regards the amount of compensation awarded in favour of the daughter and son of the deceased, that shall remain in fixed deposit till they attain majority. But, the claimants shall be entitled to get quarterly interest from the bank on the fixed deposit. However, at the time of marriage of the daughter or son of the deceased, claimants may apply to the Claims Tribunal for releasing the amount of the share of the daughter or son and the learned Tribunal would be at liberty to use its discretion while releasing amount. ( 10 ) AS regards the liability of the insurance company, it is submitted by the learned counsel that the liability of the insurance company was limited to the extent of Rs. 15,000. ( 11 ) IN the petition, it was claimed that the vehicle was insured with respondent no. 3. Ram Kumar, the owner had filed his written statement. In response to this pleadings, the owner just mentioned that the contents of the paras 15 to 17 were admitted. Insurance company specifically pleaded that their liability was limited to the extent of Rs. 15,000. They also admit that the vehicle was insured with respondent. None of the parties alleged that the vehicle was insured for any amount beyond the statutory liability. In preliminary objections, the insurance company has specifically taken that maximum liability of the respondent was up to Rs. 15,000 only. No issue was framed. Besides this aspect, the owner has not led any evidence. Insurance company has also failed to produce evidence. The only thing which could be decided was on the basis of admissions made by the respondent No. 3. In ordinary course the presumption would be confined to statutory liability under section 114 of the Evidence Act. Any person who pleads beyond statutory liability was supposed to prove it. Neither the claimants nor the owner had pleaded so. . As such, respondent no. 3 was also not called upon to rebut anything which was not pleaded. Consequently, it has to be held that the liability of the insurance company was confined to rs. 15,000 plus interest thereon at the rate of 12 per cent from the date of claim petition till 31. 3. . As such, respondent no. 3 was also not called upon to rebut anything which was not pleaded. Consequently, it has to be held that the liability of the insurance company was confined to rs. 15,000 plus interest thereon at the rate of 12 per cent from the date of claim petition till 31. 3. 2000 and thereafter at the rate of 9 per cent. ( 12 ) BUT the insurance company is supposed to pay the amount of compensation and may recover the excess payment so made from the owner. Learned counsel for the respondents submitted that after making payment of the amount, it is virtually impossible to recover the amount from the insured by filing a suit. Firstly, this plea of difficulty in realising the amount has to be ignored, in view of the recent judgment of the Apex Court in Oriental Insurance co. Ltd. v. Cheruvakkara Nafeessu, 2001 ACJ 1 (SC ). Secondly, I think section 174 of the Motor Vehicles Act is a complete answer for the misapprehension of the learned counsel about the recovery. Section 174 reads as under: "174. Recovery of money from insurer as arrear of land revenue. Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the collector shall proceed to recover the same in the same manner as an arrear of land revenue. " ( 13 ) SINCE by this award, the insurance company is being authorised to recover the amount from the insured it is a direction in an award for payment of excess amount which is required to be paid by the insurance company. The amount would become due to the insurance company after the payment of the excess amount from the insured, respondent No. 2. Accordingly, on the application of the insurer, the insurer being entitled to recover the amount, the Claims Tribunal is supposed to issue a certificate for recovery of the excess amount paid by the insurance company, to the Collector, and the Collector is supposed to proceed to recover the same in the same manner as arrears of land revenue from the insured Ram Kumar. ( 14 ) THE amount shall be deposited by the insurance company with the learned Tribunal within a period of eight weeks. The appeal stands disposed of accordingly. Orders accordingly.