S.N. Kapoor, J.@mdashThis judgment shall dispose of two appeals; one filed by the claimants Ms. Mamta Mohindra, widow of Sh. Sunil Mohindra, Master Sahil (son), Miss Shalvi (daughter) and Smt. Kanta Mohindra, mother of the deceased and the other appeal filed by the Deputy Commissioner of Police (PCR), Police Headquarters, I. P. Estate, New Delhi along with driver, Head Constable Jai Prakash, for the vehicle belonged to the Police Department.
2. Both the parties are aggrieved by the award passed by the learned Tribunal by granting compensation amounting to Rs.8,16,000/-, holding the driver Jai Prakash rash and negligent in driving and thereby causing death of Mr. Sunil Mohindra; taking monthly income of the deceased @ Rs.4800/- per month plus Rs.1200/- towards future prospects, but without appropriately considering the future prospects, deducting one-third out of it and awarding a compensation of Rs.8,16,000/- .
3. The claimants- widow, two minor children and mother of the deceased alleged that the amount awarded was inadequate.
4. The Police Department claimed that it was on very high side and the learned Tribunal failed to considered the contributory negligence as argued by the learned Counsel for the petitioner here.
5. Having heard the parties counsel, it appears essential to consider the pleadings as well as the evidence led by the parties.
6. As regards the pleadings before the Tribunal, in their written statement the driver as well as the Police Department claimed that their vehicle was not involved in the accident. It was not the case as was sought to be proved later on by leading evidence. About this aspect there is no dispute in between the parties.
7. Now, coming to the evidence, P.W. 1, Sh. Shahabuzzaman, in his statement stated that on 6th May, 1994 at about 5.30 p.m. he was on the outer Ring Road in front of DTC bus stop R. K. Puram. Mr. Sunil Mohindra (deceased) was his colleague and "had crossed first half of the outer Ring Road from C.P. W. D. Office side and was standing on the central divider with a view to cross other half of the road to reach the bus stop to catch a bus." When he was standing on the divider edge, a Maruti Gypsy bearing NO. DL-IA-0431 belonging to PCR came from the left side of Mr. Mohindra. It was at a very fast speed and very close to the central divider. The driver of the gypsy came "to the extreme right side of the road and in that process, right portion of the gypsy struck against Sh. Sunil Mohindra. On account of the forceful impact, the injured was thrown on the central divider and he sustained multiple grievous injuries and was bleeding profusely from the ears. The driver could stop the gypsy after traveling a distance of about 10 metres.........." In cross examination he stated that "I had seen the gypsy when it struck against Mr. Mohindra from its right approximately touching the divider but it had not touched the divider..." He also stated that "It is incorrect to suggest that unmindful of the traffic on the other half of the road, while waiving his hand to me, he emerged on the other half of the road and in the process, he met with an accident with that gypsy. It is further incorrect to suggest that there was no negligence on the part of the driver of the Gypsy for causing the accident..."
8. From the side of the respondents, R. W. 1 driver Jai Prakash was examined and he stated that on 6th May, 1994 at about 5.20 p.m. they received a call about a dispute. When they were moving in the vehicle on duty at the `T'' point, Paschim Marg, Outer Ring Road, New Delhi towards Vasant Vihar Police Station. It appears from his statement that they had moved about 1 to 1 1/2 kilometers. It appears that he claimed that there were bushes on the road divider which were about 6-7 feet high. One person came running from the other side of the road. The moment he saw some movement in the bushes he stopped the vehicle by applying the brakes. The said person who had come from the opposite side could not control his balance and fell on his vehicle and then after touching with the vehicle he fell down on the road divider. The said person lost his consciousness. They took out stretcher, put him on it and took him to the hospital. He could not give any reason and could not explain as to why these facts were not mentioned in the written statement, though he claimed that he had told and explained the circumstances to his counsel. He denied the suggestion that there were photographs of the site of the incident. He admitted that there was no enmity between the I.O. of the said case. He also stated that he had no enmity with Sh. Shahabuzzman P. W.1, though he volunteered that P. W.1 came later on.
9. R.W. 2, Jaipal Singh, S.I. stated that on 6th May, 1994 at about 5.25 p.m., they received a call of some dispute, and they went on gypsy No. DL-IA-0431. When it reached near Sector-6, R.K. Puram, a person came running from the Vasant Vihar side through bushes on the Central Patri. The said person lost control of his weight with the result that his head collided with the gypsy on front portion right side i.e. driver''s side and then he fell on the central patri. He was then taken in the van and in the meantime one more person came from his office and he also accompanied them to the Safdarjung Hospital. In cross-examination he stated that it was correct that the person involved in the accident was on the Central Patri when the accident took place. He also stated that he was sitting with the driver on the front seat and they were going to attend the emergency call received regarding the dispute of Africans.
10. On the record of the Tribunal there are certified copies of the statement of the witness P. W.2 Malkhan Singh. This witness was also examined as police witness though he has been mentioned as P.W. 2 instead of R.W. 3. His statement is virtually of no use though he was sitting in gypsy. However, there is one aspect that he heard a `thud'' noise and thereafter the gypsy was stopped. They came out and took out their stretcher and removed the injured to the hospital.
11. However, there is a statement of Constable Malkhan Singh, No. 1874, PCR to the effect that he got a jerk while moving in the gypsy and thereafter he saw that the front glass of the gypsy was broken.
12. From this evidence, it is evident that the deceased was crossing just in front of the bus stop. It is also apparent that the deceased was going towards the other side of the bus stop to catch a bus. It is however, evident from the statement of the above witnesses that though the gypsy might not have touched the divider, but it was so close to the divider that it hit the deceased who was thrown on the divider. One could not be oblivious to the fact that tyres of the gypsy are generally two to three inches towards the inner side of the vehicle while the mud guard and the upper body extends sometimes three to four inches beyond the wheels. Since it is not the case of the Police Department that the deceased has put his foot on the road, there may be some force in what the petitioner''s witness had stated. Supposing for the sake of arguments it is accepted as stated by P.W. 2 that he could not control his weight and fell on the front upper part of the vehicle, it would not make out a case of contributory negligence, for there was greater duty of care on the part of the drivers of the vehicle near bus-stops for usually people cross the road in a hurry in order to catch the bus. The fact that the tyre did not touch the divider would not be sufficient to infer contributory negligence in view of the greater duty of care on the part of the vehicle drivers particularly near the pedestrian crossings, crossings and bus-stops. Though, I have some inhibition in accepting the proposition that the contributory negligence should not be inferred, if it is not pleaded, yet if we adopt a justice oriented approach then the pleadings have to give way against overwhelming evidence on record for what is required to be decided by this Court is just compensation on the evidence led by the parties, and the conscientious conclusion arrived at by the Court. If the facts are so glaring that they speak for themselves especially where the doctrine of res-ipsa-loquitor is attracted then the Court may be justified in accepting the plea of contributory negligence though it may be taken at a belated stage. However, there is one thing in this case. At least the Police Department was expected to move an application for amendment for pleading contributory negligence. This is not a case where this Court should accept the plea of contributory negligence in the aforementioned circumstances. Consequently, this plea of contributory negligence is rejected.
13. As regards the plea regarding enhancement of compensation, the deceased Sh. Sunil Mohindra had left behind Smt. Mamta his widow, Mst. Sahil, Miss Shalvi his two minor children and Smt. Kanta Mohindra, mother of the deceased. Smt. Mamta stated that all of them were absolutely dependent on the deceased. Her father-in-law had already died much before the death of the deceased. She had also deposed that her husband was working with Uniplas India Limited as Area Manager and his basic pay was Rs.4400/-. However, he was drawing salary of Rs.7000/- inclusive of perks and other allowances. He had bright chances of promotion. She also proved service records vide Ex. P. W.5/1 to Ex. P.W. 5/10. She claimed that the deceased used to give her the entire salary for the household purposes and he used to spend money on himself out of perks, and as and when he needed money he used to take it from her and used to only spend Rs.500/- on himself. From his salary slips it is established that he was getting a basic salary of Rs.4000/- per month i.e Rs.48,000/- per annum. In addition to his basic salary he was getting house rent allowance of Rs.9,600/- per annum. He was also getting conveyance reimbursement amounting to Rs.9000/- per annum, medical reimbursement amount to Rs.4000/- per annum, L.T. A. reimbursement amounting to Rs.4000/- per annum, Bonus/Ex Gra. amounting to Rs.3,840/- per annum, P.F. /E.P.F. Contribution amounting to Rs.4,800/- per annum. In so far as his basic salary of Rs.48,000/- is concerned, there could not be any dispute. Similarly, the house rent allowance of Rs.9,600/- has to be considered by the Court and it is not such an allowance which should be reduced by any stretch of imagination, for the claimants/appellants are liable to the pay of rent. However, conveyance reimbursement is exclusively personal to his professional expenditure and it has to be ignored.
14. As regards, the medical reimbursement and L. T. A. reimbursement amounting to Rs.8000/- this has to be proportionately reduced, but it has to be included in the income to the extent of Rs. 6,000/- per annum. As regards bonus, bonus is being usually given at least @ 8.88%. Therefore, it could not be ignored and the same is true about the P.F. Contributions and the E.P. F. contributions. Thus, out of total gross income of Rs.83,240/- per annum, Rs.9000/- towards conveyance and Rs. 2,000/- towards medical and L.T.A. reimbursement are required to be deducted. This leaves a balance of Rs.72,240/- per annum. Thus, a sum of Rs.72,240/- should be taken to be the effective gross income of the deceased. In terms of the judgments of the Supreme Court in the case of
15. As regards the multiplier, there is no dispute in terms of the Schedule, though initially the learned Counsel for the appellants submitted that the multiplier was on the higher side. It may be mentioned that this is not the case where the parents alone are alive. There is a widow who is less than 30 years of age and there are two young children i.e. one young son and one young daughter. Consequently, the average dependency of the claimants has to be multiplied by 17 years. Thus, the annual dependency of the claimants comes to Rs.1,08,360/- x 17 = 18,42,120/-.
16. As regards interest, the claimants would be entitled to interest @ 12% p.a. from the date of petition till 31st March, 2001. However, the claimants shall be entitled to claim interest only @ 9% p. a. from 1st April, 2001, in view of the reduction in the rate of interest on fixed deposits in the nationalised banks.
17. Out of the total award including the amount awarded by the learned Tribunal 50% amount shall be payable to the widow, 20% to the daughter in view of her impending marriage and 15% each to the son and mother of the deceased. Out of the amount falling in the share of the widow 70% of the total amount of award will be deposited in a fixed deposit for a period of 5 years and 30% will be paid to the claimant-widow. Similarly, out of the total amount falling in the share two children, 70% of the amount shall be deposited in fixed deposit for a period of 5 years and the remaining 30% may be paid to the claimant-widow, in case none of the children have attained majority. Claimants shall adjust the payment already received accordingly. However, the mother, widow and the children of the deceased (through their mother) shall be entitled to draw quarterly interest on the amount so deposited in the fixed deposit, in case they feel it necessary. They are further given liberty to move the Tribunal for release of funds in case of any emergent situation.
18. The Police Department is directed to deposit the amount along with interest within a period of six weeks after adjusting the amount which has already been deposited. In the aforesaid circumstances, both the appeals bearing No. FAO 484/1999 and FAO 437/1999 are decided accordingly.
19. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.
20. A copy of this order be place on the file of FAO No. 437/1999.
