Satyavir Singh & Ors v. Om Prakash Singh & Ors

JUDGMENT *^1 R.K.GAUBA,J(ORAL^: I

¶1GajenderKumar@Karan, aged 21 years, died as aresultofinjuries suffered in a motor vehicularaccidentthat occuiredat about 6.00 pm on

08.10.2007 involving Tata Tempo bearing No.DL^ltE-4958(offending vehicle)whichwas concededlyinsuredagainstthirdpartyriskwiththe third respondentherein. On the claim_£etit^;presentedon 19.05.2008under Sections166 and 140 ofMotor VehicleAct, 1988 (MV Act) by his parents (the appellant herein), the motor accident claims tribunal (Tribunal) registeredit as suit No.193/2008and held inquiry. The driver and owner respectivelyofthe offendingvehiclewere impleadedon the allegationsthat the accidenthad occurred on account of rash or negligentdriving of the offending vehicle by its driver resulting in collision against Motorcycle bearingno.DL-3S-BB-2989drivenby the deceased. MACAPP. No. 226/2011 Page I of 10

¶2By judgmentdated 17.03.2010,the tribunalawardedcompensationin the sum of?3,70,848/-in favour ofthe claimantswith interest@7.5% per annum from the date of filing of the petition till realization. The compensation thus awarded included ?2,95,848/- towards loss of dependency. It is this part of the compensationalong with the rate of interest,whichare the bone ofcontentionin the appealathand.

¶3Beforethe tribunal,the claimantshad pleadedthat he was a bachelor earning ?11,750/- per month approximately. His father (first appellant herein) examined himself (as PW-1) on the basis of his own affidavit (Ex.PW-l/A).In the said affidavit,he statedthat the deceasedwas working as field boy with MahavirLeasingand FinanceP. Ltd. 34,pevli, Khanpur, New Delhi, gettinga salary of fl 1,750/-per month. The salaiy certificate presented with the said affidavit(Ex.PW-l/A) is shown to be;Ex.PW-l/60. Noticeably,the documentEx.PW-1/60had been preparedon tie letterhead of company named as "Above All Chit Fund Pvt. Ltd. 34^ Devli Road, Khanpur,New Delhi-62"purportingto have been signed by its authorized signatory.It is also pertinentto note that the salarycertificatedoes not bear the date on which it was issued.The documentdoes not jell with the facts affirmed in the affidavit Ex. PW-1/I wherein the name of the employer companywas describedas "MahavirLeasingand FinanceP. Ltd. 34, Devli, Khanpur, New Delhi".

¶4The tribunal observed in the impugnedjudgmentthat no sufficient incomeproofhad been filed. Undoubtedly,this was not a correctapproach for appreciatingthe evidenceas the documentEx.PW-1/60referredto above and the declarationmade in the affidavit Ex. PW-l/A required mention, scrutiny and proper conclusions to be reached. MAC APp. No. 226/2011

¶5Be that as it may, the tribunal adopted ^3,516/- per month as notional income of the deceased on the basis of minimum wages for unskilled labourer on the date of accident (08.10.2007). It may be added here that though it was claimed by the first appellant in his affidavit Ex.PW-l/A that the deceased was pursuing a computer course, no formal proof of such computer course was submitted.

¶6The tribunal, however, seems to have failed to notice that amongst the documents submitted with the affidavit Ex. PW-l/A, the first appellant had also placedon recordcopy ofthe i|i|tri(|ulat|Qncertificate(PW-1/34)ofthe deceased and, thus,Jhere .was an e.i3;pr in adopting approp^^^^ rate of mmimumwages. / - > 'r ' . \

¶7The tribuml referredto thejudgmentof a learnedsigg%judge of this Court in National Insurance Company Ltd. v. Kailash Devi II (2008) ACC 77 and the decision of the Supreme Court in Sarla Verma & Qrs. V5. Delhi .1 Transport Corporation & Anr., (2009) 6 SCC 121, to factor in the prospects of increase in future income. Having adopted the minimum wages of unskilled worker at ^3,516/- as the notional incoi^e^ it proceeded to calculate the average income by assuming it, to be ?3,522/- per month, on the basis of multiplier method (?2,348/-x2+2,318/- divided by two). There is some confusion in the discussion to this effect in (para 10 of) the impugned judgment as it is nowhere clarified as to from where the said figure of '2348' had been picked up. At the same time, it is clear from the discussion in the said paragraph that the endeavourof the tribunal was to calculatethe notional income on the basis of prospects of increase of income in future.

¶8In the appeal, the grievanceof the claimants essentiallyhas been that the evidence of PW-1 about the income should have been accepted. particularlyas it was supported by salary certificate (PW-1/60). It is submitted that when questions arose as to whether the said document could be relied upon, the appellantshave adducedproperproofby having Satish Kumarson of Mahavir,the personunderwhosepurportedsignaturethe said document(Ex.PWl/60)was issued, summonedand examined,he affirming that the salarycertificatehad been issuedby M/s Above All Chit Fund Pvt. Ltd. 34, Devli Road, Khanpur, New Delhi. Whilst commencing her arguments, learned counsel for the appellant submitted that she had personallyverifiedfrom the witness Satish Kumar, a practicingAdvocate, and only thereafterhad got him summonedto provethe facts relatingto the above-mentionedemploymentof GajenderKumar.

¶10A perusalof the depositionof SatishKumarand the salarycertificate Ex.PW-1/60,whichwas affirmedto have been issuedby him underhis own signature,whenseenagainstthe declarationmade by appellant(PW-1)gives rise to seriousdoubtsabovethe veracityof the evidenceand the claimmade beforethe tribunalinrelationto the employmentof GajenderKumararound the time of his death; The certificateissuedby SatishKumarclaimingto be director of M/s Above All Chit Fund Pvt. Ltd. is not supported by any materialorrecordmaintainedby the saidcompany. When questionedinthis regard, SatishKumartook coverunderthe plea that the companyhad since been wound up and it's recordswere no longeravailable.He claimedthat it was a privatelimitedcompany duly registered,but he would not give any document showing registrationof the said company with the Registrarof Companies.He wouldnot also give any informationas to when or by which orderthe companyhad been wound up. He would not produceany record, includingabouthis own authorization,to provethe salarycertificateEx.PW-MACAPP. No. 226/2011 1/60 which he claims had been issued by him as the 'authorized signatory' for and on behalf of the company. Since the salary certificate Ex.PW-1/60 does not bear any date and since the date of the so-called winding up of the company is not even disclosed, it cannot even be said as to whether the company had been wound up before the certificate was issued or the certificate was issued while the company was still operational.

¶11Curiously, Satish Kumar also produced in the course of his deposition, apparently at the instance of the appellant, twelve counter-foils showing certain deposits having been made in Punjab National Bank, at 7 Bikajikama place. New Delhi. The said counter-foils showing the name of the purported depositor as Gajender Kumar pertain to the period June to September 2007 and are pressed in aid to show that Gajender Kumar was actually engaged as a 'field boy' with the above said company. It is, however, not explained by Satish Kumar as to how these counter-foils have continuedto be in his control and after tfie;company had been wound up, particularlyin the teethofhis positionthatlie is unabletpppduce recordof the company for suclj reasons. Noticeably,there'-l^fio evidenceadduced evento showconnectionoC|)ie-^bnipfe/wryit^^ in whichthe said deposits were made.

¶12In the above facts and circumstances, the evidence of Satish Kumar presented during hearing of the appeal, is found to be highly suspect and not worthy of belief, particularly as the facts affirmed by the first appellant

(PWl) had sought to show that the deceased was working in a company known as Mahavir Leasing and Finance P. Ltd., the connection between the said company and the company referred to by the witness Satish Kumar not having been explained.

¶13For the foregoingreasons,the claim about income of the deceasedat ?11,750/-per month from MahavirLeasing and Finance P. Ltd. has gone unsubstantiated.The approachofthe tribunal,againstthe abovebackdrop,to assessthe incomeofthe deceasedon basis ofminimumwages,thus, cannot be faulted except that, as noted above, instead of minimum wages for unskilledworkers,the benefitofminimumwages for of matriculatesshould have been the correctmeasure,which at that time was ?3,964/-,per month. The loss of dependencyneeds to be recalculatedon such basis.

¶14The appellant relied, upon & Ors. v. Rajbir Singh & Ors.,

(2013) 9 see 54 and the decision in The New India InsuranceCompany Ltd. vs Afsana Khatoon MAC APP. 585/2013 decided on 26.05.2015, renderedby a learnedsinglejudgeofthis Court followingthe said view, to arguethat the prospectsof future increase shouldbe factoredin deathcases. V i t i \

¶15In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation&Am., (2009) 6 SCC 121, Supreme Court, inter-alia,ruled thatthe elementoffutureprospectsofincreasein incomewill not be granted in cases where the deceased was "self employed" or was working on a "fixedsalary". Thoughthis view was affirmedby a benchofthreeHon'ble Judgesin ReshmaKumari&Ors. Vs. MadanMohan &Anr.,{20U)9 SCC 65, on accountofdivergenceofviews, as arisingfrom the ruling in Rajesh & Ors. vs. Rajbir& Ors., (2013)9 SCC 54, the issue was laterreferredto a larger bench, inter-alia,by order dated 02.07.2014in NationalInsurance CompanyLtd. vs. Pushpa&Ors., (2015)9 SCC 166.

¶16Againstthe above backdrop,by judgmentdated 22.01.2016passedin MAC Appeal No. 956/2012{SunilKumar v. Pyar Mofid.), this Court has found it properto follow the view taken earlierby alearnedsinglejudgein MAC Appeal No. 189/2014 {HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court. This applies to the matter at hand because the claimants here have not led any evidence showing that the income was subject to any periodic increase.

¶17For the above reasons, the calculation of the loss of dependency has to be on the basis of a minimumwages of Rs.3,964/- per month only.

¶18Another submission of learned counsel for the,appellant is that the tribunal failed to take note of the fact that the father i.e. the first appellant, has been rendered incapableof supportinghimself since he Kas undergone I some surgical procedure. It is urged that, in such circumstances, the personaland living expensesshould have been deductedto |he extent one fourth rather than one half; .r\> /

¶19In his affidavit (Ex.PW-l/A), the first appellant had made no claim to the above effect. When examined in the court, he did produce some documents relating to problem in the backbone. But then that by itself does not mean that he has to be treated as a person rendered absolutely unable to work for gain or support himself Even otherwise, in view of the dictum in Sarla Verma & Ors. V5. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, in a claim arising out of death of a bachelor, deduction to the extent of fifty percent (50%) on account of personal and living expenses must be made.

¶20Thus, the loss of dependency is worked out at (3,964/- divided by 2) Rs.1,982/- per month. The tribunal adopted the multiplier of 14, on the basis of age of the mother (45 years), and rightly so. Therefore, the total loss of dependency is calculated as (1,982 x 12 x 14) Rs.3,32,976/-.

¶21Though, it has not been argued, it is noted that the tribunal awarded only Rs.50,000/-towards loss of love and affection and did not make any award on account of loss to estate. In Rajesh & Ors. v. Rajbir Singh & Ors. (supra), the Supreme Court had awarded Rs.1,00,000/- towards loss of love & affection.In Shashikala&'drs. Vs. Gangalakshamma& Ors. (2015) 9 see 150 while adopting the same approach. Supreme Court added Rs.25,000/- towards loss to estate. In these circumstances, in addition to Rs.25,000/- already awarded on account of funeral charges, the non-pecuniary damages of Rs.1,00,000/- towards the loss of love & affection and Rs.25,000/- for loss to estate are added. Thus, the total compensation awardable in the case is calculated as (Rs.3,32,976 + ^s. 1,50,000/-) Rs.4,82,976/-roundedoffto Rs.4,83,000/-. J

¶22There is substance in the grievance as4toJ;^the'rate of interest. Following the consistent view of the Supreme Court on the subject in a series of such cases, the rate of interestis enhancedto nine percent (9%) per annum from the date of filing of the petition till realization. [Kaiishnuma Begum V5 New India Assurance Co. Ltd. (2001) 2 SCC 9; Supe Dei V5 National Insurance Co. Ltd. (2009) 4 SCC 513; Municipal Corporation of Delhi, Delhi V5 Associationof Victimsof Uphaar Tragedy and Ors. (2011) 14 SCC 481; Basappa vs T. Ramesh(2014) 10 SCC 789; SyedSadiq etc. vs Divisional Manager, United India Ins. Company (2014) 2 SCC 735; Surti MAC App. No. 226/2011 Gupta vs UnitedIndia Insurance Companyand Ors. 2015 (3) SCALE 795; Kumari Kiran vs Sajjan Singh (2015) 1 SCC 539].

¶23The enhanced compensation shall be subject to apportionment as directed by the tribunal in the impugnedjudgment.

¶24The award is modified accordingly.

¶25The Insurance Company is directed to deposit the balance compensation payable in terms of award, as modified above, with the tribunal within 30 days from today, whereupon it shall be released to the claimants. In case of default,the claimantsshall be entitledto proceedwith execution proceedings before the tribunal.

¶26It is noted that the tribunal had directed the'iiisurance company to deposit the awarded compensationwith UCO Bank, Delhi High Court Branch in the name of claimants and file a compliance report with the tribunal. It is pointedout thatthiswas pursuantto directionsofthis Courtin MAC Appeal No.682/05 titled Union of India v. Nanisiri decided on

13.01.2010. The tribunal qupted directions (particularly para 16) of this Courtin the saidjud^ent todirectthe depositwithyCQ Bank, DelhiHigh Court Branch.

¶27It is noted that the claimants are residents of Sangam Vihar, New Delhi-62 which is located in South Delhi. In these circumstances, it was not proper on the part of the tribunal not to have ascertained the convenience of the claimantsand insteadto suo motu directthe depositof the compensation withUCO Bank branchinthe premisesof the HighCourtin New Delhi. In Union of India v. Nanisiri (supra) it was clearly directed that the convenience of the victim or legal representativeshas to be borne in mind. It is hoped that the tribunalsshall hereafterbear in mind the spirit ofthe directionsinNanisiri(supra).

¶28Be that as it may, the amount lying in UCO Bank shall also now be releasedto the claimantsby the tribunalby issuingappropriatedirections.

¶29The appeal is disposedof in aboveterms.

¶30The tribunal's record be returned. ^ R.K.Gi FEBRUARY24,2016/afa^*'^t|OT ? )SUU/, MAC APp. No. 226/2011

IN THE HIGH COURT OF DELHI AT NEW DELHI MAC.APP. 226/2011 SATYAVIR SINGH & ORS Date ofDecision:24"" February,2016 Appellants Through: Ms Arati Mahajan Shedha with Mr. Manoj Kumar, Advs. versus OM PRAKASHSINGH&ORS™:.^,^^ OM PRAKASHSINGH&ORS^^ Respondents /^Tlvou^^i'tUr.R0ulR^^Verma,Adv. HON'BLEMFg^STICER-ICCaUbA ^ \