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2002 DIGILAW 572 (DEL)

HUSSAN BANO v. SUBHASH CHAND

2002-04-23

R.C.CHOPRA

body2002
R. C. CHOPRA ( 1 ) THE appellants are the widow and six young children of deceased Imtiaz Ahmed who met with a fatal accident on 5/01/1992 caused by a DTC bus driven by respondent No. 1. The appellants petition under Section 166 if the Motor vehicle Act, was disposed if by learned MACT vide orders dated 23. 12. 2000 and a total compensation if Rs. 2,65,000. 00 was awarded to them. The appellants assails the computation and award of compensation and pray for enhancement if compensation amount. ( 2 ) I have heard the learned counsel fir the appellants and learned counsel fir respondent No. 2. None appeared fir driver, respondent No. 1. I have gone through the trial Court records. ( 3 ) THE main grievance if the appellants against the computation if the compensation is that the learned MACT computed the compensation on the basis if the salary if rs. 3500/- per month ignoring the salary statement Ex. PW5/1 which had gone unchallenged and unrebutted. Accordiny to the said statement the salary if the deceaaed w. a. f. 1. 1. 1992 had already been raised to Rs. 5000. 00 par month plus Rs. 1000. 00 or 50% of annual rent whichever ia less towards HRA, medical expenses upto 50 per cent if his salaro per annum on actual voucher basia and one month salary towarda LTA every year. It is also subcnitted that the multiplier applied by learned mact was on lower aide. It is argued that the learned MACT failed to take into consideration the prospects if future increase in the income if the deceaaed and as such the compensation is required to be enhanced. ( 4 ) A perusal if the evidence on record shows that PW5 sh. Vineet Kansal, Director if Durex Engineers Private Ltd. had deposed on oath that the deceased was a site Engineer in their Company. During probation period he was getting a salary if Rs. 3500. 00 per month plus Rs. 500. 00 per month as conveyance allowance. He was confirmed by the Board if directors w. e. f. 1. 1. 1992 on consolidated salary if rs. 5000/- per month plus other allowances as per the rules if the Company. He proved on record a certificate Ex. PW5/1 which gave details if the confirmation if the deceased w. e. f. 1. 1. 1992 on a consolidated salary if Rs. 5000. 1. 1992 on consolidated salary if rs. 5000/- per month plus other allowances as per the rules if the Company. He proved on record a certificate Ex. PW5/1 which gave details if the confirmation if the deceased w. e. f. 1. 1. 1992 on a consolidated salary if Rs. 5000. 00 per month and the allowance as stated above. PW5 was not at all cross examined inspite if opportunity and as such the statement if pw5 remains totally unchallenged and unrebutted. In the faa if this statement if PW5, the learned Trial Judge was not justified in Computing the compensation on the basis if the salary if Rs. 3500. 00 per month only and as such the compensation to be awarded to the appellants is required to be reassessed as prayed. In view if the Apex Court judgements in Donat Louis Machada and Ors. Vs. Ravindra and ors. reported in II (2000) ACC 602 (SC), General Manager kerala State Transport Corporation Vs. Susamma Thomas reporbed in AIR 1994 SC page 1631 and Smt. Sarla Dixit Vs. Balwant Yadav and Others reported in AIR 1996 SC page 1274, the trial Court ought to have taken into consideration the prospects if future increase also in the income if the deceased. The prospects if future advancement in the career and increase in the income if the deceased can be visualized by the Courts keeping in view the nature if vocation, age if the deceased and other relevant factors. In the case if a deceased belonging to a salaried class, the average monthly income of a deceased can be easily calculated by considering the pay which he was drawing at the time if his death and the last pay which he could have drawn at the time if his retirement. The reasonable prospects if his promotions may also be kept in mind. In case if self employed prifessional also the future advancement if career and increase in income can be assessed on estimated basis. If the income if the deceased at the time if his death was low, the Court may assuma 2/3 times increase in his income by the time he would have stopped working. However, in the case if a salf employed perin having high income future increase can be estimated at a lower level as the expected optimum level also has its own limits. However, in the case if a salf employed perin having high income future increase can be estimated at a lower level as the expected optimum level also has its own limits. In the case if a businessman the increase in future income has to be construed with due care and circumspection fir the raason that a businessman dlways faces more uncertainties and ups and downs in the course if his business. ( 5 ) AFTER considering the submissions made by learned counsel fir the parties and the evidence on record particularly the certificate Ex. PW5/1 which is unchallenged and unrebutted, this Court is if the considered view that w. e. f. 1. 1. 1992 the salary if the deceased was Rs. 5,000. 00 per month. The HRA of Rs. 1,000. 00 per month is also to be added to his monthly income fir the reason that this was an additional income and in no case the deceased who was having such a large family could have pad a rental if less than rs. 2,000/- per month if which Rs. 1,000. 00 per month would have been the 50%, being the minimum that could have been obtained by the deceased from his employer towards HRA. In the case of Donat Louis Machada and Ors. (Supra) the Apex Court took into consideration the prospects if the advancement if the career if the deceased and after adding the present income to the last income which the deceased could have been earning at the end if his career 50 per cent way taken as a mean figure to arrive at the aver age monthly income of the deceased fir the entire span if his working career. ( 6 ) IN the present case the income of the deceased at the time of his death was Rs. 6,000. 00 per month inclusive if hra. He way a qualified Engineer and as such it can be reasonably assumed that by the time of his retirement, his income would have gone up to at least Rs. 10,000. 00 per month. After adding Rs. 6,000. 00 to 10,000/- a sum if Rs. 16,000. 00 per month is arrived at 50% if which comes to Rs. 8,000. 00 per month. This can be taken as his average income during the remainder if his working career. On the basis if income if rs. 10,000. 00 per month. After adding Rs. 6,000. 00 to 10,000/- a sum if Rs. 16,000. 00 per month is arrived at 50% if which comes to Rs. 8,000. 00 per month. This can be taken as his average income during the remainder if his working career. On the basis if income if rs. 8,000/- per month the annual income if the deceased comes to Rs. 96,000. 00 per month which should be the base figure for computing compensation payable to the appellants. ( 7 ) IN view if the age of the deceased, his vocation and family, this Court feels that multiplier if 8 as adopted by trial Court was on lower side. A multiplier if 10 would be a proper multiplier in this case. The annual income if rs. 96,000/- multiplied with a multiplier if 10 comes to rs. 9,60,000/- out if which 1/3 should be deducted towards the personal expenses if the deceased. Thus, only 2/3 if ra. 9,60,000/- could be available to the appellants as financial support from the deceased had the deceased not died in this unfortunate accident. 2/3 if Rs. 9,60,000. 00 comes to rs. 6,40,000/- which appears to be a just and fair compensation awardable to the appellants in this case. ( 8 ) THIS Court, therefore, holds that the appellants were entitled to a compensation if Rs. 6,40,000. 00 inclusive if the compensation payable under Section 140 of the Act. The appeal is, therefore, allowed and the amount of compensation payable to the appellants is enhanced to Rs. 6,40,000. 00 with interest @ 9 per cent on the enhanced amount from the date of the filing if the petition till the date if this order. After deducting the amount already paid to the appellants the balance shall be paid to them by respondents within two months failing which future interest shall be payable @ 9 per cent per annum on the enhanced amount from the date if this order till the date of the payment. ( 9 ) THE apportionment and disbursement if the enhanced amount is left to the discretion if the learned Trial Judge who aftar hearing learned counsel fir the appellants shall pass appropriate orders in regard to the apportionment/disbursement if the amount as well as the deposit thereof in fixed deposits, if so required.