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2013 DIGILAW 1000 (DEL)

DTC v. Daya Ram

2013-05-21

SURESH KAIT

body2013
JUDGMENT : Suresh Kait, J. 1. Instant appeal has been preferred against the award dated 24.11.2004, whereby ld. Tribunal has granted compensation of Rs.4,45,000/- in favour of respondents/claimants and against the appellant/DTC. 2. Ld. Counsel appearing on behalf of the appellant/DTC has argued that deceased was working as a Mali (Gardener), however, his income has not been proved through any salary certificate. Ld. Tribunal has wrongly considered the minimum wages against the dictum of Sarla Verma v. DTC and Ors. 2009 (6) SCC 121 . 3. Ld. Counsel has further argued that the respondents/claimants were not dependant on the deceased as both were staying at Bareilly, whereas the deceased was staying at Delhi. 4. It is further argued that Ld. Tribunal has erred in considering the future prospects as 50% without having regard to the dictum of Santosh Devi v. National Insurance Co. Ltd. & Ors. 2012 6 SCC 421 . Therefore, addition of 50% towards future prospects may be reduced to 30%. 5. On the issue of personal expenses, Ld. Tribunal has erred in deducting 1/3rd whereas the deceased was a Bachelor, therefore, the personal expenses should have been considered as 50%. 6. Lastly, Ld. Counsel has argued that Ld. Tribunal has not considered the aspect of contributory negligence of the deceased as he was going on his bicycle and the accident occurred due to his fault, however, not due to the fault of the offending vehicle. 7. On the other hand, Ld. Counsel appearing on behalf of the respondents/claimants submitted that PW3, Srikant, has proved that the deceased was working as Gardener with Resident Welfare Society, A2, Janak Puri. The said witness was also working with the deceased; and admitted this fact in his cross-examination and he further stated that the deceased was getting Rs.3,000/- per month from the Welfare Society mentioned above. 8. PW4, Daya Ram, father of the deceased by way of affidavit Ex.PW4/A has proved that his son was earning Rs.3,000/- per month and he used to send his whole earning, i.e., Rs.3,000/- to him for household expenses and the deceased used to take Rs.500/- from him for his personal expenses. 9. On the issue of “appellants were not dependants on the deceased” PW4 father of the deceased has specifically stated in his affidavit Ex.PW4/A that they have no other source of income other than the income of the deceased. 10. Ld. 9. On the issue of “appellants were not dependants on the deceased” PW4 father of the deceased has specifically stated in his affidavit Ex.PW4/A that they have no other source of income other than the income of the deceased. 10. Ld. Counsel further submitted that the fact of deceased living separately from his parents does not establish that they were not dependants upon him. Moreover, PW4 by way of the affidavit Ex.PW4/A has proved that they have no other source of income except from earning of the deceased. 11. On the issue of future prospects, ld. Counsel has submitted that ld. Tribunal has rightly considered the salary of the deceased on the basis of minimum wages applicable on the date of the accident. 12. Ld. Counsel further submitted that by the dictum of Santosh Devi (Supra), Hon’ble Supreme Court has not limited 30% towards future prospects and that can be considered as 50% keeping in view the facts and circumstances of each case. 13. On the issue of personal expenses, he submitted that ld. Tribunal has rightly deducted 1/3rd keeping in view the facts and circumstances of the case as the old parents were dependant on the deceased. Ld. Tribunal has relied upon a case of Oriental Insurance Co. Ltd. v. Deo Patodi & Ors. II (2009) ACC 875 SC while deducting personal expenses as 1/3rd. Therefore, there is no discrepancy in the orders passed by the ld. Tribunal. 14. With respect to the contributory negligence, ld. Counsel further submitted that the appellants have not produced any evidence, either in the form of record or by producing any witness, except the bald statement, therefore, the challenge on the aspect of contributory negligence is not a legal ground for impugning the award. Therefore, there is no discrepancy in the order passed by the tribunal. 15. I have heard ld. counsels for the parties. 16. Deceased, aged 22 years, was working as a gardener met with an accident on 29th January 2000 and sustained fatal injuries. The respondents/claimants being the parents of the deceased preferred petition U/s 166 &144 of the Motor Vehicles Act, 1988. Thereafter, the Tribunal passed the award in favour of the respondents/claimants and fastened the liability on the appellant/DTC being the owner of the vehicle. The appellant is aggrieved by the quantum of compensation. 17. The respondents/claimants being the parents of the deceased preferred petition U/s 166 &144 of the Motor Vehicles Act, 1988. Thereafter, the Tribunal passed the award in favour of the respondents/claimants and fastened the liability on the appellant/DTC being the owner of the vehicle. The appellant is aggrieved by the quantum of compensation. 17. Ascertainment of compensation on account of loss of dependency is based on the income of the victim. Thus, in order to prove the income of the deceased, the respondents/claimants have examined PW3; who deposed that the deceased was working as a gardener. Moreover, the father of the deceased was cross-examined by the appellants, however, nothing has come on record that the deceased was not earning Rs.3,000/- per month. Therefore, it is significant to note that the presumption regarding the income of the deceased is in favour of respondents/claimants. Considering the facts and circumstance of the case, the Ld. Tribunal has rightly assessed the income of the deceased as Rs.2,500/- per month. 18. ‘Future prospects’ is an important factor, which needs to be ascertained in the assessment of ‘just’ compensation. The law is very well settled and clear on the aspect of ‘future prospects’ as it is held in Santosh Devi (Supra) and the same has been affirmed in Rajesh and Ors. v. Rajbir Singh and Ors. 2013 (6) Scale 563 (Para 11) 19. Therefore, two factors are important for proper assessment of the future prospects, i.e., the age and the nature of the job. Evidence on record reflects that the deceased was a gardener and sustained fatal injury at the age of 22 years. Considering the same, the Ld. Tribunal has rightly granted 50% towards future prospects. 20. The next point of determination is related to the aspect of the deduction of personal expense. It is relevant to note that the father of deceased deposed in his affidavit that the income of the deceased was the only source of their livelihood. Moreover, there is nothing on record to dispel the inference that the claimants were dependents on the deceased. The fact that the deceased was earning Rs.3,000/month, out of the same an amount of Rs.500/- was being paid on account of rent, assumes significance in the assessment of personal deductions. Therefore, the ld. Tribunal has deducted 1/3rd towards personal expenses. 21. Moreover, there is nothing on record to dispel the inference that the claimants were dependents on the deceased. The fact that the deceased was earning Rs.3,000/month, out of the same an amount of Rs.500/- was being paid on account of rent, assumes significance in the assessment of personal deductions. Therefore, the ld. Tribunal has deducted 1/3rd towards personal expenses. 21. In view of above, I do not find any justifiable reason for interference on the quantum of compensation that has been granted in favour of respondents. 22. Accordingly, the appeal is dismissed with no order as to costs. 23. I note, pursuant to order dated 03.08.2005, the appellant/DTC had deposited the entire award amount, out of which 50% has been released in favour of respondents/claimants. 24. The ld. Tribunal is directed to release the balance 50% award amount with interest accrued thereon in favour of the respondents/claimants. 25. The Registry of this Court is directed to send a copy of this order to Ld. Tribunal for compliance. 26. The Registry of this Court is further directed to release the statutory amount, if any, in favour of the appellants.