Prabha Gupta and Others vs Suresh and Others

Reva Khetrapal, J.

CM No. 3822/2010

This is an application under Order v. Rule 20 CPC for substituted service of the Respondent No. 1 by way of publication Since the Respondent No. 1 already stands served by way of publication, the present application has become in fructuous. Dismissed as in fructuous.

FAO 104/1999

By way of this appeal u/s 173 of the Motor Vehicles Act, the Appellants seek to assail the award dated 06.10.1988 passed in Claim Petition No. 651/1994, awarding a sum of Rs. 3,60,000/- with interest @ 12% p.a. from the date of the petition till the date of the award in favor of the Appellants and against the Respondents on the ground that the compensation granted to the Appellants was not computed by the Tribunal in accordance with law.

The brief facts leading to the filing of the appeal are that an unfortunate accident took place on July 14, 1994 near Pusa Chambry, New Delhi in which Mr. S.P. Gupta, aged 53 years, lost his life and his wife, Mrs. Prabha Gupta sustained injuries as a result of the three wheeler scooter in which they were travelling turning turtle. A claim petition was filed by Mrs. Prabha Gupta and the other legal representatives of the deceased S.P. Gupta, claiming compensation for his untimely death. In a separate petition filed by Prabha Gupta, she also claimed compensation for the injuries sustained by her. Both the claim petitions were ordered to be claimed and tried together. On the evidence adduced by the Appellants/claimants, the learned Tribunal held that, the deceased Mr. S.P. Gupta had received fatal injuries and Prabha Gupta had received injuries on account of the rash and negligent driving of the TSR by its driver. The Tribunal then proceeded to compute the compensation payable to the legal representatives of the deceased S.P. Gupta, which is the subject matter of appeal in the present case.

It was held by the Tribunal that the deceased S.P. Gupta was 53 years of age on the date of the accident, his date of birth being 27th March, 1941, as per his educational certificates proved on record by PW4 Shivang Satya, son of the deceased. The Tribunal then noted that it was alleged in the petition that the deceased was working as a Teacher in S.P. Higher Secondary School in Jammu and his monthly income was Rs. 12 ,104/-, in that he was drawing a salary of Rs. 5,104/- per month and was earning a sum of Rs. 7,000/- from private coaching. It was, however, claimed that the deceased was not assessed to income tax. The Tribunal further noted that PW1 Prabha Gupta in her testimony stated that the deceased was getting a salary of Rs. 5,104/- per month from the school where he was employed, as per his salary certificate, Exhibit PW1/1. She also claimed that in his spare time in the evenings, the deceased used to coach the students in groups and was earning a sum of Rs. 7,000/- per month from private coaching. In cross-examination, however, she candidly admitted that her husband had not maintained any accounts in respect of his income from private tuitions, though she categorically denied that her husband had not been imparting private coaching and had no extra income there from.

The learned Tribunal held that the Appellants had failed to produce any evidence to substantiate the statement of PW1 that the deceased was earning a sum of Rs. 7,000 from private coaching. It observed that if the statement of PW1 is accepted, the income of the deceased in the year 1994 would have been around Rs. 12,000/- per month, which was liable to be taxed. The Appellants had failed to file any income tax return in respect of the deceased and rather, had stated in the petition that the deceased was not assessed to income tax. The Appellants had also failed to produce any of the students, in the witness box, who were taking tuitions from the deceased, or any document or record which might prove that the deceased was having extra income from private coaching. Thus the Tribunal assessed the income of the deceased to be in the sum of Rs. 5,104/- per month as set out in his salary certificate. Applying the dicta laid down by the Supreme Court in the case of Sarla Dixit v. Balwant Yadav 1996 III AD 13, the Tribunal then worked out the average monthly income of the deceased, had the deceased survived the accident, to be in the sum of Rs. 7,500/- per month, i.e., Rs. 5,104 + Rs. 10,000 divided by 2= Rs. 7,552. On the assumption that the deceased was spending one third of his total income on his own upkeep, the loss on account of monthly dependency to the Appellants was computed by the Tribunal to be in the sum of Rs. 5,000/- per month or Rs. 60,000/- per annum. To augment this multiplicand, the Tribunal applied the multiplier of 6, and held that the compensation payable to the Appellants came to Rs. 3,60,000/- including the amount of Rs. 25,000/- already received by the Appellants as interim compensation. In addition, a sum of Rs. 15,000/- with interest was awarded to Mrs. Prabha Gupta for injuries sustained by her, which amount however is not sought to be assailed in the present appeal.

Mr. V.P. Chaudhry, the learned Senior Counsel for the Appellants has drawn my attention to the claim petition wherein, inter-alia, the following assertions have been made by the claimants:

(i) Shri S.P. Gupta, the deceased, was a youngman of 53 yeas of age. He was highly qualified man. He had to his credit B. Sc. Degree, Master of Arts and Master of Education Degrees. After receiving his education, he had devoted himself to teaching line. He was Chairman of the Managing Committee of S.P. Academy which was running five schools within Jammu and Katwa Districts. Besides, being the Chairman of the Managing Committee of S.P. Academy, he was the Principal of S.P. Higher Secondary School, Exchange Road, Jammu. As Principal of the said school, Shri Gupta was drawing a salary of Rs. 5,104.00 per month. In the spare time in the evening, he used to coach students in groups. He was earning bare minimum income of Rs. 7000.00 from private coaching.

(ii) Shri S.P. Gupta (the deceased) possessed sound health and robust physique. He was a man of simple habits. He was renowned personality in the field of education. He was caring the most for his family and was providing best possible education to his children. The eldest daughter, namely Arti Gupta was undergoing medical studies at ALTASKY Government Medical College, BANNAUL SIBERIA, Russia. She entered third year after completion of second year studies. Second daughter named Anjali Gupta is undergoing dental course at SJM Dental College, Chitra Durg, Karnataka. Shri Gupta was spending Rs. 1 lakh per annum for education of Arti and Rs. 60,000.00 per annum for the education of Anjali Gupta. Master Shivang Satya Gupta was studying in 12th standard.

On the basis of the aforesaid, Mr. Chaudhry contended that keeping in view the fact that the deceased was a highly qualified academic, apart from being a father who was imparting the best possible education to his three children, the learned Tribunal ought

(i) Keeping in view the fact that the deceased was survived by four legal representatives, the learned Tribunal should have deducted one- fourth of the income of the deceased towards his personal expenses instead of one third.

(ii) The Tribunal erred in applying the multiplier of 6 to the total loss of dependency per annum assessed by the Tribunal. The multiplier of 11 would have been the appropriate multiplier keeping in view the fact that the age of the deceased was 53 years.

(iii) Non-pecuniary damages for loss of love and affection, loss of consortium and funeral expenses which were not awarded ought to have been awarded by the Tribunal.

Mr. A.K. Soni, the learned Counsel for the Respondent Insurance Company, rebutted the aforesaid contentions and sought to support the award on the ground that it was a just and fair one, apart from being well reasoned.

After hearing the learned Counsel for the parties, I am not inclined to agree with the learned Counsel for the Appellants that the Appellants have proved on record that the income of the deceased was Rs. 12,000/- per month, i.e., Rs. 5,104/- per month from the school and Rs. 7,000/- per month from private coaching. Apart from the statement of PW1, Mrs. Prabha Gupta, wife of the deceased, there is not an iota of evidence available on record to show that the deceased was imparting private tuitions. In the cross-examination, PW1 Prabha Gupta categorically denied that her husband had been maintaining account of his income from private tuitions. It also cannot be lost sight of that had the income of the deceased been Rs. 12,000/- per month, as is asserted by the Appellants, it would have fallen within the tax net and there is a clear assertion in the claim petition itself that the income of the deceased was not assessable to Income Tax. Thus, in my view, the learned Tribunal rightly took the income of the deceased as Rs. 5,104/- per month.

As regards the deduction of one-fourth of the income of the deceased towards his personal expenses, though the well-accepted norm is that one-third income of the deceased should be deducted towards his personal expenses, it has been held in several judicial pronouncements, including the celebrated case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, that this deduction may vary in accordance with the number of legal representatives left behind by the deceased. In the present case, the deceased left behind him his widow, two daughters and a son, i.e., 4 dependants and, accordingly, the contention of the learned Counsel for the Appellants that a deduction of one-fourth only should have been made from the income of the deceased towards his personal expenses warrants acceptance.

Similarly, I am of the view that the learned Tribunal, keeping in view the fact that the deceased was only 53 years of age, ought to have applied a higher multiplier than the multiplier adopted by it for augmenting the multiplicand. The multiplier for the age group of persons between 51 years of age and 55 years of age is the multiplier of 11, as set out in the Second Schedule to the Motor Vehicles Act, and approved by the Supreme Court in Sarla Verma''s case (Supra). Undoubtedly also, in Law the Appellants are entitled to non-pecuniary damages apart from pecuniary damages, awarded to them by the learned Tribunal.

In view of the aforesaid, the total compensation payable to the Appellants is being recomputed as follows:

Taking the income of the deceased to be Rs. 60,000/- per annum as assessed by the Tribunal and deducting one fourth there from towards his personal expenses and maintenance and applying the multiplier of 11 thereto, the compensation payable to the Appellants works out to Rs. 4,95,000/- i.e. Rs. 45,000/- per annum x 11. Apart from this amount, the Appellants must be held entitled to compensation for the loss of love and affection in the sum of Rs. 25,000/-, Rs. 10,000/- towards loss of consortium, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses, i.e., in all Rs. 5,45,,000/- with interest @ 12% p.a., as awarded by the Tribunal from the date of filing of the petition till the date of its realization. The award amount is enhanced accordingly.

The appeal stands disposed of in the above terms.