Lata Mansukhani & Ors v. Dtc

ORDER %

10.08.2011 For the reasons recorded in the main appeal, that is, FAO No. 619/2003, the cross-appeal does not survive and the same is disposed of. REVA KHETRAPAL, J. AUGUST 10, 2011 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. m lliE eSGli-l COURT OF DELHI AT NEW DEIJ I), r.c. Appellant 'rhrough: Mr. J.N. Aggarvval, Advocatc versus LATA MANSUKHANI & ORS Respondenls Through: Mr. Navneel Goyal, Advocate % Date of Decision : August 10, 2011 CORAM: IION'BLE MS. JUSTICE REVA KHETRAPAL

¶1Whether reporters of local papers may be allowed 10 see the judgment?

¶2To be referred to the Reporter or not?

¶3Whether Judgment should be reported in Digest? J [J D G M E N : REVA KHETRAPAL, J.

¶1l]y way of this appeal, the appcllant-J^elhi Transport (.U)rporationseeks to assail the Judgmentand award dated 30"^ May, 2003 passed by the learned Motor Accidents Claims 'I'ribunal, Delhi.

¶2The facts may be brieily recapitulated as follows. Pane 1 of 15 On 18.07.1999,one Mohan Mansukhani,aged about 55 years, was going from his house in ModelTowntowardsthe bus stand,after crossingthe G.T. Karnal Road,when he was hit by bus No.DBP-6048 on the road leading to the bus stand. Allegedly the said bus was being driven by the respondentNo.5, Angrez Smgh at a very fast speed, recklesslyand negligentlyand it hit the deceasedfrom behind causing Mai injuries. The respondentsNo.l to 4, who are the legal representativesofthe deceased,beinghis widow and three daughters, filed a Claim Petitionunder Section 166 of the Motor Vehicles Act, 1988 seeking compensationfor the untimely demise of their bread earner. The learnedMotorAccidentsClaims Tribunalafteranalyzing the evidence adduced before it held that the accident which had resulted in the unfortunatedeath ofthe deceasedwas the outcomeof the rash and negligentdrivingofthe offendingbus by the respondent No.5. As regardsthe quantumofcompensation,the leained liibunal, on the basis of the testimony of PW3 Smt. Lata Mansukhani, calculatedthe total loss oi"dependencyofthe respondentsNo.l to 4 to be in the sum of ? 6,45,348/-,and alter adding the non-pecuniary FA0 619/2()()3_ • PcioeloflS I damages to the said amount awarded a sum of ^ 6,70,348/- with interestat the rate of 9% per annum from the date of the petitiontill reahsation. The appellant as the owner of the offending bus was directed to pay the award amount.

¶3Aggrievedby the aforesaidfindingsofthe Tribunal,the present appeal has been preferredby the appellant. Mr. J.N. Aggarwal,the learned counsel for the appellant,has challengedthe award primarily on two grounds. The first is that the learnedTribunalought to have held that the deceased met with his death due to his own acts of on^issionand commission, in that the deceased due to his exuberance attemptedto board the bus before it had been parked at the stand for boarding by the commuters. Mr. Aggarwal contended that the negligenceof the deceasedthus contributedto his own death and to that extent the award amount deserved to be scaled down.

¶4The second contention of Mr. Aggarwal, the learned counsel for the appellant,pertains to the quantum of compensationawarded by the learnedTribunal. It was contendedthat there was no basis for. the Tribunal to arrive at the finding that the monthly loss of 3 of15 dependencyof the respondentsNo.l to 4 was ? 5,000/-per month. It was further contended that there was no evidence on record to bear out the fact that the income of the deceased would have increased over the passage of years and, as such, the learnedTribunalerred in applying the dictum laid down by the Supreme Court in the case of Sarla Dixit w. Balwant Yadav, AIR 1996 SC 1274. The counsel contended that though no specific reference had been made by the learned Tribunal to the said decision of the Supreme Court, the Tribunal had taken the average monthly income of the deceased at t 7,333/-by doublinghis actual earningsof? 5,000/-to ? 10,000/-and thereafterdividing the sum total of his actual earnings and anticipated earnings by the figure of two. The counsel for the appellant also contended that the Tribunal ought to have applied the multiplier of 8 and. at best, the multiplier of 9 to the multiplicand constituting the loss of dependency of the legal representativesof the deceased. Instead, a multiplier of 11 had been applied, which could not be termed as the appropriatemultiplierkeeping in view the tact that the Pase4 of 15 \D deceasedwas admittedly55 years and 10 months of age atthe time ot the accident.

¶5Mr. Navneet Goyal, the learned counsel for the respondents No.l to 4, on the other hand, sought to support the findings of the learnedTribunalwith regardtothe causationofthe accidentand with regard to the rash and negligentmanner in which the offendingbus was being drivenby the respondentNo.5 resultingin the unfortunate accident. As regards the quantum of compensationawarded by the learned Tribunal, Mr. Goyal submitted that the compensation deserved to be enhanced, inter alia, on the following grounds;

(i) The learned Tribunal ought to have taken the average income of the deceased as ^ 7,500/- instead of ? 7,333/-.

(ii) Keeping in view the fact that only one daughter of the deceased was married and there were two unmarried daughters of the deceased apart from the wife of the deceased, the learned Tribunal ought to have deducted only one-fourthof the average income of the deceased towardshis personalexpensesand maintenance. Pa^eSoflS

(iii) The learned Tribunal ought to have capitalizedthe loss of dependency suffered by the claimants by the multiplierof 15 keeping in view the fact that one of the daughtersof the deceasedis mentallychallengedand her dependency is a lifelong one.

(iv) J"he learned Tribunal erred in awardingmeagre amount towards the pecuniai7 and non-pecuniarydamages and no amount whatsoever has been awarded towards the loss of estate.

¶6Adverting to the contention of the learned counsel for the appellantwith regard to the contributorynegligenceof the deceased, in my view, the same is totally devoid of merit. The Tribunal has threadbare analysed the evidence of PW2 Shri Satbir Gupta, an eye witness to the accident as well as the deposition of RWl Angrez Singh, the driver of the offendingbus to arrive at the conclusionthat the rash and negligentdriving of the latter had resulted in the fatal accident.' I find no reason to differ with the conclusions of the 6 of15 (L Tribunal in this regard, but a look first at the testimoniesof the said two witnesses.

¶7PW2 Shri Satbir Gupta, in the course of his testimony,stated that on the fateful day he was coming from L.al Bagh Ashram and going towards the bus terminal with two other persons. The deceased, Shri Mohan Mansuldianiwas ahead of him and was going into the bus terminal when bus No.DBP-6048 came from behind and hit against him with the front bumper of the bus and dragged him, resulting in his collar bones being broken completely and his receiving other injuries as well. He further testified that the bus driverwas drivingat a fast speed. He also statedthat he had narrated the incidentto the police and given them all the particularswhen he came to Icnow that the said Mohan Mansukhani had died. Though the witness was extensivelycross-examined,he did not budge from the stand taken by him in his examination-in-chief Thus, the aforesaid testimony of PW2 Satbir Gupta emerged unshaken after cross-examination. He clarified that the accident had taken place inside the bus terminal near the 'Juicewala shop'. In answer to a specific query 7 of 15 • put to him, he statedthat the speed ofthe bus mightbe 40/45 km per hour and that the front bumper left portionhad hit the deceased. He categoricallydenied the suggestionput to him that the deceasedhad tried to boardthe movingbus and had fallen down while doing so. A lot of emphasishas been laid by the learnedcounselfor the appellant U on the fact that the witness in his cross-examination admitted that he knew the deceased, but this, in my view, is not a sufficient ground to discard the testimony of the witness whose statement appears to be otherwise worthy of credence and has passed the test of extensive cross-examination.

¶8As againstthis, the statementof RWl AngrezSingh appears to me to be a self-servingone. He, in his testimony,stated that the bus was movingat a slow speed towardsAzadpurTerminalfor bookinga scheduledtrip of Route No.ll4. At that time, a passengerseeingthe slow speed of the bus tried to board the moving bus, as a result ol which he received accidental injuries. He deposed that he had written to the i^epot Manager that the said accidenfwas caused due to the rashness and negligence of the deceased, but in the coarse ol his FAQ 619/2003 8 of15 cross-examinationwas compelledto admitthat he had no prool oi the same. He was also forced to admit that he had not complained to any policeofficialregardinghis false implicationin the criminalcase. He also admitted in his cross-examination that it was only after entering the bus terminal at Azadpurthat his bus was to be awarded a trip to Kutub Garh. In my view, it is difficultto fathomwhy a personwould try to board a bus which was enteringthe terminaland had yet to be awarded a trip. Had the bus been leavingthe terminal,it could have been argued that the person in his attempt nc^t to miss the bus had tried to board the running bus.

¶9Apart from the above, in my opinion,the entire defenceof the appellant is falsified by the site plan (Ex. P7) prepared by the investigatingOfficer,whereinplace 'A' has been shown as the place of accidentwhich is just towards the right side of the middle of the road, and place 'B' has been shown to be just near the corner of the road towards the left side where the deceased was found lying after the accident. It has been rightly observedby the learnedTribunalthat a person falling down from a bus while tryingto board a moving bus ' 9 of 15 cannot fall down towards the right side of the bus when the entrance gate of the bus is always towards the left side and thus the story of RWl stands completely falsified.

¶10Significantly,PW2 Satbir Gupta also specificallydeposed that the bus came from behind and hit the deceased with the front bumper and draggedhim for some distance. The versionofPW2 is supported by the site plan Ek.P7,whereinplace 'A' has been shown as the place of the accident which is in the middle of the road, which suggests that the deceased was hit by the front bumper.' The deposition of PW2 that the bus draggedthe deceasedand his collarbones were broken is also corroborated by the post-mortem report. Further, I find no reason to disbelievethe testimonyof PW2 Satbir Gupta. No motive whatsoeverwas imputed to him for deposingfalsely. He was one of the persons accompanyingthe deceased at the time of the accident and is a natural witness to the accident. Thus, the learned Tribunal rightly relied upon his testimony to hold that the driver ol the appellantwas guilty of rash and negligentdriving. It also cannotbe lost sight of that the driver of the bus was entering a bus tenninal, FAQ619/2003 Pa^e 10of15 prcsLimablycrowded, and as the driver of a heavy vehicle it was his duty to have ensuredthat he drove the bus careliilly. PW2 has stated that the bus was being driven at a fast speed, and the fact that the deceased was dragged by the bus bears out the testimony of PW2. 7"hc findings ofthe learnedTribunalwith regardto the negligenceof L' ihc respondentNo.5 are accordinglyaffirmed.

¶11As regards'the quantum of compensation, PW3 Smt. Lata Mansukhani categorically deposed in the witness box that the deceasedwas running a stationeryshop at Model Town and he used to give her ^ 5,000/- per month for household expenses. Some photographsof the shop have been placed on record, which, though have not been duly proved, show that the deceased was running a shop in the nature of a General Store-cum-Stationeryshop. PW3 further deposed that her deceased husband had purchased a house during his lifetimeand placed on recordthe Agreementto Sell of the said house. No rebuttal evidence was adduced and accordingly the Tribunal assessed the monthly income of the deceased at ? 5,000/- pcr month. I see no plausible reason for coming to a contrary 11 of 15 conclusion. However,I am not inclinedto agree with the lindingsof the learned Tribunal with regard to the fliture earnings of the deceased. As noted hereinabove, the Tribunal had doubled the earnings of the deceased and after adding the actual earnings of the deceased on the date of the accident to his anticipated earnings divided the said figure by two, to arrive at the average monthly income of the deceased as ? 7,333/-. I do not find any evidence on record to justify the conclusion that the earnings of the deceased would have increased in the years to come. The deceased was 55 years of age and presumablyover the years his business must have gatheredmomentum,and whetherhis incomewould have risen much further in the coming years or decreased is entirely a matter oi conjecture.

¶12I am fortified in coming to the above conclusion from the decision rendered by the Supreme Court in the case of Smt. Scirla Verma and Ors. v5. Delhi Transport Corporation and Anr. (2009) 6 see 121^ wherein the Supreme Court has held that in view of the imponderablesand uncertainties,as a rule of thumb an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects shoiild be made where the deceased has a permanentjob and is below 40 years and an addition of only 30% should be made if the age of the deceased is between 40 to 50 years and there should be no addition, where the age of the deceased is ^ more than 50 years, it was furtherheld that where the deceasedwas self-employed,as in the instantcase, the Courtswill usually take only the actual income at the time of the death; a departure from the aforesaid dictum should be made only in rare and exceptional cases involving special circumstances.

¶131am constrained to hold that in the present case there appear to be no specialcircumstancesin this case tojustifya departurefrom the •aforesaid guidelines laid down by the Supreme Court. Accordingly, [he average monthly income of the deceased for the purpose of computing the loss of dependency of his legal representatives is assessed to be in the sum of ? 5,000/- only. However, keeping in view the fact that the deceased left behind him his wife and three daughters,that is, four dependents,a deductionof one-fourthonly is FAQ 619/2003 13 of 15 / requiredto be made from his income towards his personalexpenses. Thus, the average monthly loss of dependency of his legal representativescomes to ^ 3,750/-per month and the annual loss of dependency comes to 45,000/- per annum. To the aforesaid multiplicand,the Tribunalhas appliedthe multiplierof 11, and I think rightly so. As held in the case of Sarla Verma (supra), the appropriatemultiplierwhere the age ofthe deceasedis between51 to 55 years is the multiplier of 11, which incidentally is also the multiplierset out in the Second Scheduleto the Motor VehiclesAct, 1988. Thus calculated,the respondentsNo.l to 4 are held entitledto receivepecuniarydamagesin the sum of? 4,-95,000/-.

¶14In addition to the aforesaid pecuniary amount, the respondents No. 1 to 4 are also held entitled to receive a sum of ? 10,000/- tovvards loss of consortium,a sum of? 10,000/- towards the loss of estate, t 25,000/- towards the loss of love and affection and t 10,000/-towardsfuneral expensesand last rites of the deceased. I'he total amountof compensationawardableto the respondentsNo. 1 to 4 thus comes to ? 5,50,000/-. The quantum of compensation is FA0 619/2003 Pu^e 14 of 15 L' accordinglyreducedfrom ^ 6,70,348/-to ? 5,50,000/-with interestas r awarded by the learned ^J'ribunal.

¶15'fhe award is modified to the aforesaid extent. Resultantly, the appeal is allowed in part. August 10, 2011 km REVA KHETIMPAL (JUDGE) Pat^e 15 of15

\ * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP. / 72011 (to be numbered)(CrossObjections) LATA MANSUICI-IANI & ORS Appellants Tlirough: Mr. Navneet Goyal, Advocate versus D.T.C. Respondent Through: Mr. J.N. Aggarwal, Advocate CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL