t- IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC APP. No. 667/2007 Judgment delivered on: March 26. 2008 © Smt. Jeet Puri And Ors. Appellants Through: Ms. Swati Bhushan Sharma, Adv versus Raghu Prashad And Ors. Respondents Through: Mr. Pankaj Seth, Adv for R-3 CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR, 1. Whether the Reporters of local papers may "j be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? KAILASH GAMBHIR, J. Oral: By way of the present appeal the appellant seeks to challenge the impugned award so as to claim enhancement in the compensation amount over and above the amount of Rs. 16,91,584/- awarded by the Tribunal. MACAPP. No. 667/2007 Page 1 of6 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Brief summary of facts to deal with the contentions of the parties, are that on 26.4.2003 at about 5:40 AM, the deceased was standing on the road and was looking at the gate of his car bearing Registration No. DL 3CB 8765, near the main gate of DDA/Modern Park, New Delhi and at that time a TSR bearing Registration No. DL IRG 7914 came from the direction of Moolchand Hospital and hit the deceased as a result of which the deceased fell down and died at the spot. Ms. Swati Bhushan Sharma, counsel appearing for the appellant has mainly raised four grounds so as to claim enhancement in the compensation amount. The first grievance of the appellant is that the Tribunal has not applied the correct multiplier as laid down in the Ilnd Schedule of the 'Motor Vehicles Act. Contention of the counsel for appellant is that the deceased was of 53 years of age as on the relevant date of accident and the applicable multiplier as per the Ilnd Schedule of the Motor Vehicles Act, is 11 and not 8. MAC APR No. 667/2007 Page 2 of6 Another contention raised by the counsel for the appellant is that the Tribunal has not correctly assessed the income of the deceased. Contention raised by the counsel for the appellant is that the Tribunal has not taken into account the income which was being earned by the deceased from other sources although, the deceased has duly paid tax on the said income. Per contra, Mr. Pankaj Seth, counsel for the respondent refutes the submissions made by the counsel for the appellant. Mr. Seth submits that without there being any evidence produced by the appellant with regard to disclosure of business of the deceased, still the Tribunal has been quite considerate in awarding compensation in favour of the appellant at an excessive amount. Counsel for the respondent, thus, tried to justify the impugned award and prays that the appellant is not entitled to any further enhancement in the compensation amount as the compensation amount awarded by the Tribunal is just, fair and reasonable as per the mandate of Section 168 of the Motor Vehicles Act. MACAPP. No. 667/2007 Page 3 of6 (5 I have heard learned counsel for the parties and have perused the record. Counsel has invited my attention to the Income Tax Return filed by the deceased for the assessment years 1999-2000, 2001-02 and 2002-03. The Income Tax Returns filed for the financial year 1.4.1999 to 31.3.2000 shows that his total income was Rs.4,77,772/- and income of Rs.3,29,851/- for the financial year 2000-01 and Rs.6,87,004/- for the financial year 1.4.2001 to 31.3.2002. For all these financial years, the deceased has also disclosed his income from other sources at Rs.1,03,208/-, Rs. 1,13,083/- and Rs. 3,55,268/-. Thus, income from other sources is besides the income which was being earned by the deceased through salary. Perusal of the income tax returns filed by the appellant clearly shows that the appellant has paid income tax on the total income earned by him through salary as well as through other sources. Once the tax has been paid by the deceased on the total income being earned by him through two separate sources, then the income which was being earned by the deceased through other sources could not have been excluded for MACAPP. No. 667/2007 Page 4 of6 I 0 determining the earnings of the deceased. The Tribunal has taken an average of the incomes of the said financial years and after deducting 1/3 therefrom, has assessed the dependency at Rs.2,08,323/- per annum. Since the tribunal has not given any reason for excluding the said income which was being earned by the deceased from other sources, therefore, if we add the said income as disclosed by him in all these said Income Tax returns, the same would come- out to Rs. 5,71,559/- and dividing the same by three, average income of the deceased would come to Rs. 1,90,520/-. After deducting 1/3 therefrom towards personal expenses, the loss of dependents would come to Rsl,27,013/-. The next ground of challenge by the appellant is that the Tribunal has not correctly applied multiplier as laid down in the Ilnd Schedule of the Motor Vehicles Act. I find there is merit in the submission of learned counsel for the appellant. The Tribunal has not given any reasons in the award as to why the Tribunal has deviated from the applicable multiplier as laid down under the Ilnd Schedule MACAPP. No. 667/2007 Page 5 of6 & of the Motor Vehicles Act. The applicable multiplier as per the Ilnd Schedule is 11 and not 8, keeping in view the age of the deceased who was 53 years of age at the relevant time of the accident. The same is accordingly modified from 8 to 11. The third ground of challenge made by the appellant is that the Tribunal has awarded lower rate of interest @ 6% per annum which was not given as per the banking rate. The same is also enhanced from 6% to 7.5% per annum. The differential amount of compensation shall be paid by respondent No.3 insurance company from the date of filing of claim petition till reahzation. With the above directions, the matter is remanded back, to the tribunal for apportionment of the amount of compensation with up to date interest in favour of the appellants/claimants. , March 26, 2008 'raj' KAILASH GAMBHIR, J. MACAFP. No. 667/2007 Page 6 of6 c $~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC A. 661lim JEET PURI AND ORS Petitioner Through None. versus RAGHO PRASHAD AND ORS. Respondents Through Mr.Shomik Mazumdar, Advocate for Mr. P.K. Seth, Advocate for R-3/ Insurance Company CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR ORDER % 07.08.2015 CM APPL. No. 2468-69/2009 By this application filed under Section 151 of the CPC, the applicant- respondent No.3 / Insurance Company seeks correction in the order and judgment dated 26.03.2008 passed by this Court in MAC APP. No.667/2007. Reply to this application has already been filed by the non-applicant. By this application filed under Section 151 of the CPC, the applicant- respondent No.3 / Insurance Company seeks correction in the order and judgment dated 26.03.2008 on the ground that there is an apparent error in the said order and judgment and therefore, in the interest of justice, necessary correction may be made at therelevant pages of thejudgment. As per the applicant, due to some inadvertence in the order and judgment, the 'income from business orprofession' instead of'income from other sources' has been considered while taking the average income from the income tax returns. The contention raised by the applicant is that the income ofthe deceased which is 'from business or profession' has also been taken into consideration by the learned Tribunal and there has been no dispute in this regard. The non-applicant has taken a preliminary objection to the filing of the application under Section 151 ofthe CPC. The non-applicant has averred that provision of Section 151 of the CPC can only be invoked in a case where there is no remedy otherwise provided under the civil procedure code. *• Onmerits, the non-applicant has averred thatthis Court hastaken finding of facts while considering the legal and factual aspect of the case. This application was preferred by sometime in the year 2009 and since then the same is being adjourned for one or other reasons. Perusal of the various orders passed in this application shows that on most of the dates the applicant remained unrepresented. Today, also an adjournment is being sought by Mr. Shoumik Mazumdar, Proxy Counsel appearing for Mr. P.K. Seth, the learned counsel for the applicant- respondent No.3/ Insurance Company on the ground that Mr. P.K. Seth and Mr. Pankaj Seth are out of station. I find no ground to adjourn this matter today again. I have examined the impugned order, contentions raised by the applicant in the instant application and also the objections raised by the non- applicant in the reply to this application. The objection raised by the non- applicant that the present application filed by the applicant is not maintainable under Section 151 of the CPC is a valid objection as the remedy to seek correction in the order and judgment is not available under Section 151 of the CPC. On merits also, I do not find any substance in the contentions raised by the applicant- respondent No.3/Insurance Company f' seeking correction in the impugned orderandjudgment. The application moved by the applicant- respondent No.3/Insurance Company is devoid of any merit and the same is accordingly dismissed. All the pending applications are also dismissed. Respondent No.3/ Insurance Company is directed to implement the directions given bythis Court vide order dated 26.03.2008 within a period of one month from the date ofthis order. KAILAJ AUGUST 07,2015 y A- SHGAMBHIR,J.