PUSHKAR MEHRA Vs. BRIJ MOHAN KUSHWAHA

JUDGEMENT

(1.) Leave granted. This civil appeal is directed against the judgment and order dated 14.12.2011 passed by the High Court of Delhi at New Delhi in M.A.C. Appeal No. 830 of 2010 whereby the High Court dismissed the appeal of the Appellant upholding the compensation awarded by the Motor Accident Claims Tribunal (for short the "Tribunal") in Suit No. 364 of 2009, urging various facts and legal contentions.

(2.) The Appellant-widow is the wife of the deceased who, along with the mother and the children of the deceased, filed claim petition before the Tribunal under Sections 166 and 140 of the Motor Vehicles Act, 1988 (for short "the Act") claiming compensation amounting to Rs. 25,00,000/- due to the death of her husband namely. Swadhin Mehra in a motor vehicle accident, which took place on 23.10.2004 at about 4.45 p.m. when the deceased was crossing the road. At this time the offending vehicle dumper (bearing No. HR-38F-8284) loaded with concrete came very fast and stopped, after which the driver of the dumper reversed the vehicle in a rash and negligent manner as a result of which the deceased was crushed under the right side tyre of the dumper causing his death on the spot. The annual income of the deceased was claimed to be Rs. 1,25,000/- per annum as he was self-employed in the business of trading in paints and hardware. The claim was contested by the Respondents, oral and documentary evidence was produced by the parties in support of their case. The Tribunal accepted the case of the claimants and held that there was rash and negligent driving by Respondent No. 1-the driver of the offending vehicle which was owned by Respondent No. 2-the owner and insured with Respondent No. 3-the insurer. The Tribunal awarded total compensation of Rs. 3,84,760/-. Under the head of loss of dependency, the Tribunal has held that there was no documentary evidence produced by the Appellant on record in support of the income of the deceased, and therefore, it has taken his salary to be Rs. 2894.90/- per month (which was rounded off to Rs. 2895/- per month) as per the wages for unskilled labour under the Minimum Wages Act, 1948. As the deceased was above 50 years old, a multiplier of 11 was applied to quantify the loss of dependency of the Appellant. The dependency was taken to be only of two members i.e. the widow and his mother and so 1/3rd of the amount was deducted on account of personal expenses of the deceased. Thus, the amount under the head of loss of dependency came to Rs. 2,54,760/-. Under the conventional heads the Tribunal has awarded Rs. 10,000/- for loss of consortium, Rs. 10,000/- for loss of estate, Rs. 1,00,000/- on account of love and affection and Rs. 10,000/- for funeral expenses. Thus, the Tribunal awarded a total sum of Rs. 3,84,760/- as compensation with interest at the rate of 7.5% per annum on the award amount from the date of filing of the petition till the notice of the deposit of the award amount under Order 21, Rule 1 of Code of Civil Procedure with detailed break-up within 30 days of the dispatch/receipt of order whichever is earlier. The Tribunal also held that the compensation amount would first be paid by the Respondent No. 3 - the Insurance Company who can thereafter recover it from the Respondent No. 2 the owner of the vehicle on the ground that it has been proved on record that the license possessed by the Respondent No. 1 - the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled for recovery of the compensation awarded and directed to pay to the Appellant as provided under Section 149(2) of the M.V. Act from the owner.

(3.) The said judgment and award was challenged by the Appellant in the High Court seeking enhancement of compensation granted by the Tribunal questioning the correctness of the compensation awarded. The Appellant contended that deceased's income was Rs. 1,25,000/- per annum as he was carrying on the business of paints and hardware. It was urged by the learned Counsel for the Appellant that even if there is no evidence to prove that the deceased had an income of Rs. 1,25,000/- the fact that the deceased had brought up two sons who were very well placed would be sufficient to show that he had substantial income. It was contended that even if the Appellant's case is considered under Section 163A of the Act, 1/3rd income of the surviving spouse can be taken as the income of the deceased. The High Court stated that neither was it the case of the Appellant that the deceased was an income-tax Assessee nor was any document placed on record to show that any income-tax was paid by the deceased. The High Court held as under:--