C.M. Nayar, J.
(1) The present appeal is directed against the judgment and award dated October 28, 1988 of Shri B.L.Garg, Judge, Motor Accident Claims Tribunal, Delhi. The appeal is filed by the Insurance Company, the Oriental Insurance Company Limited. The respondents-claimants have filed cross-objections, being C.M.No. 1550 of 1989 for enhancement of compensation as awarded by the Tribunal.
(2) The respondents-claimants filed petition before the Tribunal claiming compensation of Rs.50 lakhs on account of the death of Shri Ganga Ram Gupta as a result of the accident. The deceased was coming from Najafgarh side on March 30, 1987 at about 10 P.M. in his Maruti Car No. Dbd 7613 on the left side of the road and it is alleged that he was driving at a low speed. When the said car reached near Aggarwal Dharamshala, Uttam Nagar, Najargarh Road, a bus bearing No. Dep 4442 driven by Bhoop Singh, respondent no.6 herein, rashly and negligently came on the wrong side of the road and hit the said Maruti car in the front on the right side. The deceased Shri Ganga Ram Gupta received multiple injuries due to negligent driving with the result he died on the spot. The respondents have further alleged that the accident took place due to the negligence on the part of respondent no.6 as he was driving the vehicle rashly and recklessly in due course of his employment under respondent no.7. The deceased was earning Rs.l,91,696.75 per annum from his business. He was an income-tax assessed and paid income tax of Rs.47,260.00 for the assessment year 1987-88 in his individual capacity as well as Karta of Hindu Undivided Family. The deceased was about 26 years of age and was enjoying good health. There is a history of longevity of life in the family and the father of the deceased was 70 years of age at the time of accident and his grand father died at the age of 95 years. The respondents-claimants were dependent on him financially and by his sudden and unfortunate death they have been deprived of the love and care which they were expected to enjoy for number of years. The bus in question was owned by respondent no.7 and was insured with the appellant insurance company.
(3) Respondents 6 and 7, driver and owner of the vehicle, did not appear in the court despite service and they were proceeded against ex parte. The appellant Insurance Company filed its written statement in which it has admitted the death of the deceased as well as of the accident but has denied that the accident took place due to rash and negligent driving of the bus in question on the part of respondent no.6. According to the appellant, the accident took place due to rash and negligent driving of Maruti car on the part of the deceased Shri Ganga Ram Gupta. It was further pleaded that the amount claimed was excessive. However, it was admitted that the liability of the company was unlimited.
(4) The following issues were framed on the pleadings of the parties:
(I)Whether the deceased died on account of rash and negligent driving of vehicle No. Dep 4442 on the part of respondent No.1?
(II)Whether the petitioners are the legal representatives of the deceased?
(III)To what amount of compensation are the petitioners entitled and from whom?
(IV)Relief.
(5) The learned Judge examined the evidence and came to the conclusion that on the basis of evidence on record it was established that respondent no.6 was driving the bus in question rashly and negligently and also at a fast speed and that he was responsible for this accident. The deceased died as a result of rash and negligent driving of the bus on the part of respondent no.6. The respondents-claimants were held as the legal representatives of the deceased and this issue was also decided in favor of the respondents.
(6) The learned counsel for the appellant has vehemently contended that the accident was not caused due to rash and negligent driving of the driver. The witnesses were planted and there was no eye witness even despite search. At best this could be termed as the case of contributory negligence. The alleged eye witnesses are Public Witness 3 Shri Vinod Kumar Gupta and Public Witness 9 Shri Ram Avtar. Public Witness 3 has deposed that on March 30, 1987 he along with Ram Avtar were going on two wheeler scooter from Najafgarh Road to Tilak Nagar side and when they reached Aggarwal Dharamshala he saw a bus No. Dep 4442 coming from Tilak Nagar side which was being driven by its .driver rashly and negligently and also at a fast speed. It struck against a Maruti car No. Dbd 7613 which was coming from Najafgarh side and was going towards Tilak Nagar side at slow speed. The bus driver did not blow any horn. As a result of this accident the driver of the Maruti car sustained injuries. He has also deposed that he informed the police who was in a jeep near the crossing of Vikaspuri. The cross- examination of this witness did not elicit any further facts to establish any negligence on the part of the deceased. The statement of this witness was corroborated by Public Witness 9 who was traveling with Public Witness 3. This witness has also reiterated that the bus was being driven rashly and negligently at a high speed which resulted in the accident. The car was on the left side of the road and the bus driver did not give any horn and the accident was caused due to his negligence. Reference is made to the testimony of Public Witness 11 Shri Ved Prakash, Asi, Batalion Pitampura, Delhi. He was the Investigating Officer in the matter. He has reiterated that on March 30, 1987 after receiving Dd number at 10 A.M., he reached the spot of accident along with constable Surender Pal. This witness found bus No. Dep 4442 and car No. Dbd 7613 in accidental condition opposite Aggarwal Dharamshala, Uttam Nagar, Najafgarh Road, Delhi. He came to know that the injured had been removed to Hospital. The witness prepared the site plan and got the spot of accident photographed. He searched for the eye witnesses at the hospital and at the spot but did not get any eye witness. The learned counsel for the appellant has, thereforee, argued that the eye witnesses referred to above have been planted subsequently as Public Witness 11 never found any eye witness on the spot where the accident took place. It may, however, be noticed that the witness reached the spot of accident at 10.15 P.M. and it is stated that at that time no person was present near the place of accident. The investigation continued with Public Witness Ii till May 1, 1987 and till that date he had not recorded the statement of any eye witness. It is argued that the second Investigating Officer Asi Shri Raj Singh was not examined. The Fir Ex. Public Witness 1/1 did not indicate the name of the witnesses. There are material contradictions in the evidence and it is established on record that the car driver was on the wrong side and the bus was not running at a high speed. In view of the above, it is contended, that-no negligence can be attributed on the part of the driver, respondent no'.6 herein.
(7) I have perused the evidence of the witnesses, as referred to above. There is no doubt that Public Witness Ii has stated that when he reached the spot no eye witness was available. This, however, will not establish that the eye witnesses were planted subsequently as such witnesses may have reported the matter to the police and forgot about it till the date they were summoned to appear in the court. The cross-examination of these witnesses could not elicit any fact which will lead to the conclusion that their testimony was untrustworthy and it had to be discarded. These witnesses, as has been correctly noted by the Tribunal, have not been shown to be in any manner interested in the deceased or claimants 'and no motive can be attributed to them to depose falsely. Their evidence cannot be discarded and their statements have been recorded by the police. They were shown in the copy of the list of witnesses filed by the police in the criminal court. thereforee, the conclusion that these witnesses are not procured, cannot be assailed. The appellant company did not take any steps to produce the driver of the bus who could be the best witness to prove the circumstances, which led to the accident. The Tribunal has correctly drawn adverse inference against his non-production and the negligence in this regard could not be ruled out. There is no material which is place'd before me in this appeal which calls for interference with the finding of the Tribunal to the effect that the deceased died as a result of rash and negligent driving of the bus on the part of respondent no.6. This finding is accordingly affirmed.
(8) The next question which now arises is as to what amount of compensation are the respondents entitled to. The deceased was held to be 26 years of age on the date of accident. He left behind his widow Smt. Rekha Gupta, two minor children and his parents. The evidence of Smt. Rekha Gupta indicates that the deceased was having good health. The Tribunal took into account the history of longevity of life in the family and the state of health of the deceased and gave a finding that it was reasonable to expect that the deceased would have continued to live up to the age of 70 years, if he had not died as a result of the accident. The dependency of the respondents claimants was next considered. It was brought in evidence that the deceased was working as a partner in M/s Amish Enterprises and his share was to the extent of 50 per cent. He was alleged to be a Karta of.HUF firm of Ganga Ram Gupta & sons which was a partner of Sonu Finance and Investment Enterprises to the extent of 10 per cent share and owner of the Service Station for vehicles at village Samalkha Gurgaon Road, Delhi. The deceased was assessed and paid income tax to the tune of Rs.30,240.00 in individual capacity for assessment year 1987-88 and also paid a sum of Rs.17,020.00 towards income tax for the earning of Huf for the same assessment year. The total income of the deceased was accordingly determined as Rs-1,91,696.75. It was further reiterated that the above said firms had been dissolved due to the death of deceased Ganga Ram Gupta. Public Witness 4 Prem Kumar, Inspector, Income Tax Department was produced and he has deposed that the individual income of the deceased up to 31st March, 1987 was Rs-94,896.10. The original assessment order Ex.PW4/l was filed. It was further brought in evidence that the deceased was having agricultural income of Rs.30,000.00 which was not included in the taxable income of the deceased. The Tribunal on the basis of the evidence on record assessed the income of the deceased at Rs.l,34,060.00 from which certain deductions were made. Paragraph 17 of the award reads as follows: 'From the evidence above, it is established that the deceased Shri Ganga Ram Gupta was having income as under:
Income in individual capacity Rs. 89,280.00 Agricultural income Rs. 30,000.00 Rs.l,19,280.00 Less Income Tax paid Rs. 30,240.00 Rs. 89,040.00 Income from Huf Rs. 62,040.00 Less Income Tax paid Rs.17,020.00 Rs. 45.020.00 Total income Rs. 89,040.00 Rs. 45,020.00 Rs.1,34,060.00
Out of this amount, I have to make further deductions in Agricultural income and in the income from HUF. The reason is that petitioners might be getting some income from the land by engaging some other person by paying some amount. Though there is no specific evidence to that effect but I am of the view that they might begetting Rs.15,000.00 from the Agricultural land now. thereforee, Rs.15.000- more are to be deducted from the above said amount. Similar is the case to income of HUF. There is no evi donee on record as to how many members of Huf were there. I think it constituted of father and son and being so, the income from Huf is to be divided into two parts and as such, 50% amount is to be deducted on that score. Thus, a sum of Rs.37,510.00 on account of agricultural income and. Huf are to be deducted. After making such deductions, the earning of the deceased comes to Rs.96,550.00 per annum. Taking into account the facts and circumstances of the case, it can be very safely held that the deceased must be earning Rs.96,550.00 p.a. on the date of accident. As such, the income of the deceased at the lime of his death is help to be Rs.96,550.00 per annum.'
(9) The learned Judge on the basis of deductions as above, assessed the income of the deceased at the time of his 'death to be Rs.96,550.00 per annum and after making a deduction of Rs.24,550.00 which the deceased was expected to spend for food, clothing and other incidental expenses, the annual amount which the deceased was spending for his family came to Rs.72,000.00 per annum. The multiplier of 18 years was adopted as an appropriate multiplier in the facts and circumstances of the present case. The award of compensation in the sum ofRs.12,96,000.00 (rounded of to Rs.l3,00,000.00 ) was made on that basis.
(10) The Tribunal determined the income of the deceased only on the basis of one Income Tax Return for the assessment year 1987-88. There was no other evidence which was brought on record nor the same has been brought to my notice. The entire assessment is based on the basis of assessable income torn that year. The learned counsel for the respondents-claimants fairly conceded in this regard. The usual course would be to remand the case for fresh determination on this question. The better option to which the learned counsel did not object was to get particulars of the documents, such as, income-tax returns which would reflect deceased's income for earlier years so that the quantum of compensation could be assessed in this appeal. In this view of the matter, I asked the learned counsel to place on record the documents for earlier assessment years prior to the date of death of the deceased. The matter was adjourned for placing such documents on record. The same have since been filed. The documents have been filed by learned counsel .for the respondents for the assessment years commencing from 1978-79. It will be, however, sufficient to take into consideration the particulars, as contained in the assessment years 1985-86, 1986-87 and 1987- 88 respectively. The following particulars with regard to the individual income of the deceased may be referred to:
Assessment Gross Net income Agricultural Income tax year income income paid 1985-86 40,708.25 34,848.33 15,000.00 6128.00 1986-87 78,304.00 69,619.14 20,000.00 19500.00 1987-88 94,896.10 89,280.75 30,000.00 30240.00'
(11) The above income for the years 1987-88 also includes a sum of Rs.51,200.00 which was shown as an 'amount under amnesty scheme'. This cannot, thereforee, be termed as income of the deceased for the relevant year.
(12) The Huf returns which are already on record as Exs. Public Witness 5 Public Witness 5/4 and PW5/5 indicate the following income:
Assessment year Income Income tax paid 1985-86 14,920.00 Rs. 1314.00 1986-87 50,620.00 Rs.l2,248.00 1987-88 62,040. Rs.l7,020.00
(13) The said Huf is known as M/s Ganga Ram Gupta and sons. Here again the Tribunal has also taken the income of the year 1987-88 and has ignored the income for the previous years. The agricultural income for three years prior to the date of death of the deceased is Rs.65,000.00 . In the ultimate analysis, the Tribunal reduced the agricultural income of the deceased by Rs.15,000.00 on the basis that the respondents-claimants might be getting Rs.15,000.00 from the agricultural land even now. There was also no evidence on record to indicate as to how many members constituted the HUF. The Tribunal on this count reduced the income by 50 per cent and ultimately held the income of the de ceased to be Rs.96,550.00 per annum Even assuming it is accepted that the entire assessment of the income of the deceased can be made on the basis of single assessment year, the Tribunal has erred in one respect. The return of income for the assessment year 1987-88 which has been taken as Rs.89,280.00 includes Rs51,200.00 which is included in the return as the amount shown under the amnesty scheme. This indeed cannot be an income for the relevant year. thereforee, on that basis, the said amount has to be excluded from the income tax which will only come to Rs38,000.00 . In view of this, the income of the deceased, as held to be Rs.96,550.00 seems to be exaggerated and on-the higher side. The Tribunal has worked out the income from Huf on some guess work as it is not established on record about the members who constituted the HUF. The analysis of the income relating to Huf and agricultural income can be accepted in the facts and circumstances of the case and as a reasonable allowance in regard thereto is already made.
(14) The pattern of individual income for the years 1985-86, 1986-87 and 1987-88 will indicate that the deceased was having an average gross income for the three years in the range of Rs.1,60,000.00 from which deductions of income tax of about Rs.'55,000.00 have to be made. thereforee, the net income of the deceased in this situation cannot, in any manner, be assessed at more than Rs.35,000.00 per year. This will also be so on the basis of the income for the assessment year 1987- 88 if the sum of Rs.51,200.00 as amount shown under amnesty deposit is excluded. The revised assessment of income of the deceased on the above basis shall work out as follows:
Income in individual capacity Rs.35,000.00 Agricultural income as assessed by the Tribunal Rs.l5,000.00 Income from Huf as assessed Rs. 22,510.00 Total income Rs-72,510.00
In the absence of evidence it is not unusual to deduct 1/3rd of the gross income towards the personal living expenses and treat the balance amount likely to have been spent on the members of the family and the dependents. The assessment of the Tribunal with regard to the amount which the deceased was spending for his family is rather exaggerated. There is another aspect of the matter, such as, the agricultural income of the deceased which will continue to accrue. The deceased did not own large chunks of land nor he was a farmer. The farming activity was only with regard to small pieces of land for which the material is now placed before this Court and no such material was before the Tribunal. The learned judge has taken into consideration the agricultural income as well as the income .of Huf without any cogent evidence on record having been placed by the respondents-claimants. The entire exercise seems to be partly conjectural basis and this Court had to peruse all the documents to arrive at a conclusion with regard to the income of the deceased which should sound, just, fair and equitable. The amount of dependency, on the basis of the evidence available on record, can be assessed at Rs.48,500.00 after taking into account the personal annual expenditure of the deceased. The dependency, therelore, can safely be assessed at the Figure rounded of at Rs.50,000.00 per annum.
(15) The multiplier adopted by the Tribunal is 18. The deceased was 26 years of age at the time of death. He left behind his young widow and two minor children and parents. The multiplier, which has been adopted by the Tribunal is 18. Many factors have to he put into the scales to evaluate the contingencies of the future. The Supreme Court in general Manager, Kerala State Road Transport Corporation v. Susamma Thomux and others 1994 ACi / adopted the multiplier of 12 while the deceased was 39 years of age in that case. The multiplier adopted in the present case is 18 and no serious challenge to the same was made. In view of the facts and circumstances of the present case the adoption of multiplier of 18 in the present case seems to be appropriate and adequate and the same does not call for any interference. The annual amount which the deceased was expected to spend for his family, in view of the above is assessed at Rs.50,000.00 per annum which multiplied by 18, comes to Rs.9 lakhs. The respondents- claimants are, thereforee, held entitled to that amount as compensation. The interest shall be payable at the rate as awarded by the Tribunal on the above amount from the date of petition till payment.
(16) The claimants have also filed cross- objections for further enhancement and have raised a claim for the amount of Rs.50 lakhs. This is exaggerated and cannot be supported on the present facts. There is no evidence to support any further revision in the amount, which is now being awarded nor any such evidence has been adduced. The plea is accordingly rejected.
(17) Fao 28/89 is allowed in the above terms. The cross objections, being C.M.No. 1550/89 arc dismissed. There will be no order as to costs.