Poonam Devi and Others vs Birju Yadav @ Bachhu and Others

G.P. Mittal, J.—The Appeal is for enhancement of compensation of Rs. 5,58,000/- awarded for the death of Virender Prasad Yadav @ Virender Prasad Rai who died in an accident which occurred on 07.09.2008. In the absence of any Cross-Appeal or Cross-Objections, the finding of negligence has become final between the parties.

The Appellants who filed the Claim Petition were the deceased''s widow, a minor child, mother, father aged 62 years and an unmarried sister.

It was claimed during inquiry before the Claims Tribunal that the deceased was a TSR driver and was earning Rs. 9,000/- per month. The evidence produced with regard to the deceased''s profession was not disputed. In fact, at the time of the accident, the deceased was driving a TSR and he got down to help the victims of a motor accident which had already taken place. The offending truck/container bearing registration No.HR-38J-8675 driven by the First Respondent in a rash and negligent manner mowed down a number of persons including the deceased. The Claims Tribunal in the absence of any cogent evidence with regard to the deceased''s income took the help of minimum wages as on the date of the accident fixed under the Minimum Wages Act, added 50% towards future prospects to compute the loss of dependency as Rs. 5,38,000/-. After adding notional sums towards loss of consortium, funeral expenses and loss to estate, an overall compensation of Rs. 5,58,000/- was awarded.

The contentions raised on behalf of the Appellants are:

i) The Claims Tribunal erred in taking the deceased''s income under the Minimum Wages Act. The deceased''s income should have been considered as Rs. 9,000/- per month as stated by PW1 Poonam Devi in her affidavit Ex.PW1/A and PW2 Prabhu Prasad Yadav in his affidavit Ex.PW2/A.

ii) The deceased''s father was aged 62 years and the deceased had an unmarried younger sister, the number of dependents were, therefore, five and deduction of 1/4th ought to have been made instead of 1/3rd in view of the judgment in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, .

iii) No compensation was awarded towards the loss of love and affection and the compensation awarded towards funeral expenses and loss to estate was very low.

As stated earlier, PW1 Poonam Devi''s and PW2 Prabhu Prasad Yadav''s testimony that the deceased was an Auto/TSR driver was not challenged. No suggestion was given to PW2 in the cross-examination that the deceased was not working as a TSR driver. This accident took place on 07.09.2008. Minimum wages of a skilled worker under the Minimum Wages Act on that date of the accident was Rs. 4107/-. The Claims Tribunal ought to have elicited some evidence to find out the earnings of a TSR driver at the time when this accident occurred. I would, therefore, make a guess work and assume the salary of a TSR driver in September, 2008 to be about at least Rs. 200/- per day. Although, the TSR drivers work all seven days in a week. Even if the number of working days in a month is taken as 25, the minimum income of a TSR driver would be Rs. 5,000/- per month.

As far as the deduction towards personal and living expenses is concerned, in Sarla Verma (supra), it was held that normally the father would not be considered as a dependent. In this case, it was not disputed that Vasudev Rai, the deceased''s father was aged 62 years on the date of the accident. The deceased had an unmarried younger sister. Considering the age of the deceased''s father and the fact that the deceased belonged to a lower strata of the society, I would consider the deceased''s father and his unmarried sister to be financially dependent on the deceased. I agree with the learned counsel for the Appellants that deduction of 1/4th of the deceased''s income should have been made towards his personal and living expenses instead of 1/3rd. The loss of dependency thus comes to Rs. 7,20,000/-( Rs. 5,000/- X 3/4 X 12 X 16).

Normally, a sum of Rs. 25,000/- is awarded for loss of love and affection irrespective of the financial status of the deceased or the Claimants. Therefore, I would make a provision for Rs. 25,000/- towards loss of love and affection. Rs. 10,000/- each is awarded towards loss to consortium, funeral expenses and loss to estate.

The overall compensation is enhanced from Rs. 5,58,000/- to Rs. 7,75,000/-.

The enhanced compensation of Rs. 2,17,000/- shall carry interest @ 7.5%. Out of the enhanced compensation, Rs. 1,00,000/- shall be payable to Smt. Poonam (the deceased''s widow), Rs. 50,000/- to baby Priyank (the deceased''s minor daughter), Rs. 30,000/- to Vasudev Rai(the deceased''s father) and Rs. 37,000/- to Anita Kumari(the deceased''s mother) along with the proportionate interest.

The enhanced amount along with interest shall be deposited in the UCO Bank Account of the above said Appellants within six weeks. 60% of the enhanced amount awarded to the Appellant No.1 shall be held in Fixed Deposit for a period of two years, four years and six years. Rest of the amount shall be released immediately on deposit. The amount payable to Appellant No.2 shall be held in Fixed Deposit till she attains the age of 21 years. 50% of the enhanced amount awarded to Appellants No.3 and 4 shall be held in Fixed Deposit for a period of two years. Rest of the amount shall be released forthwith. The Appellants would be entitled to draw quarterly interest.

The Appeal is allowed in above terms. The statutory amount shall be refunded to the Appellants.