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2007 DIGILAW 909 (DEL)

SANTOSH KUMARI v. ORIENTAL INSURANCE CO. LTD.

2007-05-01

PRADEEP NANDRAJOG

body2007
JUDGMENT : Pradeep Nandrajog, J. 1. On 8.2.1996, deceased aged 40 years died in a road accident involving bus No. DEP 6261. He was survived by his wife, 2 minor sons, a minor daughter and father. 2. Dependants filed a claim petition u/s 140 read with Section 166 of the Motor Vehicles Act, 1988, claiming a compensation of Rs. 10,00,000 on account of death of the deceased in the said vehicular accident. Father of the deceased died during the pendency of the claim petition. 3. After holding driver of the offending bus guilty of rash and negligent driving, learned Tribunal proceeded to determine compensation to the dependants. 4. The wife of the deceased, Santosh Kumari stepped into the witness-box as PW 5 and deposed that her husband was a transporter and was earning Rs. 20,000 per month at the time of the accident. She further deposed that deceased had bought a Tempo under hire-purchase agreement from Singh Finance Co. and was paying an instalment of Rs. 12,000 per month and that he was earning his livelihood by plying the said Tempo. She placed on record receipts (Exh. PW5/2 to Exh. PW5/21) which showed that the deceased was paying Rs. 11,000 or Rs. 12,000 per month as instalment. She further deposed that after death of her husband she sold the said Tempo. The delivery receipt (Exh. PW5/1) showing the sale of said Tempo was placed on record. 5. Tribunal disbelieved the testimony of the wife of the deceased that the deceased was a transporter and was earning Rs. 20,000 per month at the time of the accident. The Tribunal did not place any reliance on the aforenoted receipts for the reason same were not proved by the person who had issued them. 6. Relying upon the driving licence of the deceased (Exh. PW5/22), learned Tribunal held that the deceased was Tempo driver. Aid of minimum wages notified under the Minimum Wages Act was taken by the Tribunal to determine the monthly income of the deceased at the time of the accident. Deceased was placed in the category of skilled labourer. Minimum wages for skilled labourer as on 1.2.1996 was Rs. 2,101 per month. The same has been adopted as the monthly income of the deceased at the time of the accident. 7. Deceased was placed in the category of skilled labourer. Minimum wages for skilled labourer as on 1.2.1996 was Rs. 2,101 per month. The same has been adopted as the monthly income of the deceased at the time of the accident. 7. Giving benefit of future increase in income of the deceased, mean average income of the deceased has been determined as Rs. 3,151.50 per month [(Rs. 2,101 + Rs. 4,202) + 2 = Rs. 3,151.50]. Annual income has been taken as Rs. 37,818. 8. Deducting 1/3rd for personal spending of the deceased, average loss of dependence has been determined at Rs. 25,212. 9. Wife of the deceased had deposed that deceased was aged 35 years at the time of the accident. In absence of cogent evidence showing the age of the deceased, learned Tribunal has taken the age of the deceased as 40 years on the basis of the post-mortem report, Exh. P6. Applying multiplier of 16, total loss of dependence has been determined as Rs. 4,03,392. 10. Adding thereto a sum of Rs. 10,000 for loss of love and affection, Rs. 10,000 for expectancy of the life of the deceased and Rs. 2,000 for the funeral expenses, total compensation awarded to the dependants is Rs. 4,35,392 (sic). 11. Aggrieved by amount of compensation, dependants-appellants have filed the present appeal praying for enhancement of compensation. 12. Learned Counsel for the appellants challenged the award on only one count. Counsel contended that while determining loss of dependence, the Tribunal erred in determining the income of the deceased at the time of the accident on the basis of minimum wages. 13. Learned Counsel for the appellants contended that there was ample evidence before the Tribunal showing the income of the deceased at the time of the accident. He further contended that the testimony of the wife of the deceased as also instalment receipts, delivery receipt produced by her clearly established that deceased was the owner of Tempo and was earning his livelihood by plying the said Tempo. 14. I agree with the learned Counsel for the appellant inasmuch as the aforenoted instalment receipts and delivery receipt (noted in para 4 above) establish that the deceased had purchased a Tempo under a hire-purchase agreement. 15. The Motor Vehicles Act, 1988, is a beneficial legislation intended to provide monetary solace to the dependants of the victims of the vehicular accident. I agree with the learned Counsel for the appellant inasmuch as the aforenoted instalment receipts and delivery receipt (noted in para 4 above) establish that the deceased had purchased a Tempo under a hire-purchase agreement. 15. The Motor Vehicles Act, 1988, is a beneficial legislation intended to provide monetary solace to the dependants of the victims of the vehicular accident. Standard of proof required under this legislation is a liberal one. The aforenoted instalment receipts and delivery receipt appear to be genuine documents. A perusal of the record shows that instalment receipts for each and every month has been placed on record. It is proved beyond doubt that the deceased was paying an instalment of Rs. 12,000 per month. 16. It could reasonably be assumed that deceased was earning such amount from which he was paying monthly instalment of Rs. 12,000 and was also sustaining himself and his family. Thus, I consider it reasonable to take income of the deceased as Rs. 18,000 per month at the time of the accident. How else could he repay monthly instalment of Rs. 11,000? 17. However, the fact that deceased was paying an instalment of Rs. 12,000 per month is a relevant fact. Therefore, his net income at the time of the accident is taken as Rs. 6,000 per month. 18. It is relevant to note that source of livelihood of deceased was an asset which was being depreciated. Surely, the earnings of the deceased would have risen in the future but at the same time deceased would have spent a major portion of his earnings for reinvesting the capital asset. Thus, I take net income of the deceased as Rs. 6,000 per month. 19. Noting the extended family of the deceased and also the fact that children of the deceased were aged 12 years, 10 years and 8 years respectively at the time of the accident, I consider deduction of 1/4th for the personal spending of the deceased as appropriate. Thus, average loss of dependence comes to Rs. 4,500 per month. 20. Noting that the deceased was aged 40 years at the time of the accident, Tribunal has applied multiplier of 16 on the basis of Second Schedule appended to the Motor Vehicles Act, 1988. Multiplier of 16 applied by the Tribunal is on the higher side. 21. In my opinion, multiplier of 11 is reasonable. 4,500 per month. 20. Noting that the deceased was aged 40 years at the time of the accident, Tribunal has applied multiplier of 16 on the basis of Second Schedule appended to the Motor Vehicles Act, 1988. Multiplier of 16 applied by the Tribunal is on the higher side. 21. In my opinion, multiplier of 11 is reasonable. Thus, total loss of dependence comes to Rs. 5,94,000 (Rs. 4,500 x 12 x 11). 22. Tribunal has awarded Rs. 4,03,392 under the head 'loss of dependence'. Thus, compensation under this head is enhanced by a further sum of Rs. 1,90,608 (rounded off to Rs. 1,90,600). 23. The appeal stands disposed of by enhancing the compensation by a further sum of Rs. 1,90,600. 24. Enhanced compensation shall be paid together with interest at the rate of 6 per cent per annum from date of claim petition till date of realisation. 25. Enhanced compensation shall be paid as follows: Appellant No. 1 (wife) Rs. 1,30,600 Appellant No. 2 (son) Rs. 20,000 Appellant No. 3 (daughter) Rs. 20,000 Appellant No. 4 (son) Rs. 20,000 26. Enhanced compensation together with accrued interest shall be invested in a fixed deposit with a nationalised bank or post office for a period of 5 years. Monthly or quarterly or half-yearly interest would be permitted to be withdrawn by parties. No costs. L.C.R. be returned.