IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 324/1999
Judgment reserved on 07.01.2008
Judgment delivered on: 13.4.2009
Shaifali & Ors. ..... Appellants.
Through: Mr. O.P. Mannie Advocate
versus
Sh. Ashok Kumar & Ors. ..... Respondents
Through: none.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award dated 20 th February 1998 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs.97,500/- along with interest @ 12% per annum to the claimants.
2. The brief conspectus of the facts is as follows: FAO No. 324/1999 Page 1 of 8
On the fateful day of 9th July 1988, the deceased Smt. Shanti Devi was going on a scooter with her husband Sh. Subhash Chander Talwar and son Master Gaurav Talwar, aged about 6 years mother. They were going from Azad Market to their residence at Malviya Nagar. At about 2 P.M. at Tughlak Road, a Haryana Roadways bus bearing registration No. HYU 6687 came in a fast speed from the front, and in order to overtake rashly; the bus came on the wrong side of the road and rammed the passengers riding the scooter. Sh. Talwar, his wife and his son sustained fatal injuries and they died on the same day in the Hospital where they were taken from the accident site.
A claim petition was filed on 22nd October, 1988 and an award was made on 20th February 1988. Aggrieved with the said award enhancement is claimed by way of the present appeal.
3. Sh. O.P. Mannie counsel for the appellants assailed the said award on quantum of damages. He submitted that the deceased was supporting and assisting a large family at the time of accident by her domestic services and also financially, by taking tuition classes in the neighbour and was earning a salary of Rs 800/- P.M. from that. Further, it is submitted that she was a graduate from the Delhi University. The counsel stated that FAO No. 324/1999 Page 2 of 8 income of the deceased from tuition should be taken into account and further income of Rs. 3,000 should be computed as the income on account of household services. To compute the loss of dependency, according to the Counsel, a multiplier of 16 shall be applied. It was urged by the counsel that the tribunal erred in not considering future prospects and states that the court should have applied the method provided under Sarla Dixit's Case. The counsel contended that the tribunal has erred in not awarding compensation towards loss of love & affection, funeral expenses, loss of estate, loss of consortium, mental pain and sufferings and the loss of services, which were being rendered by the deceased to the appellants.
4. Nobody has been appearing for the respondents.
5. I have heard learned counsel for the appellants and perused the record.
6. The appellants claimants had examined witnesses to prove their case. According to PW5 & PW6 the deceased was 38 years of age and was also taking tuitions besides doing her household chores and motherly duties. According to PW6, the deceased was teaching her children and for that the deceased was paid Rs. 300/- pm. The said witness also deposed that the FAO No. 324/1999 Page 3 of 8 deceased was also giving tuitions to other children who were paying her Rs. 200/- pm. After considering all these factors I am of the view that nothing has been brought on record as regards the educational qualification of the deceased and also, no proof of income has been put forth with exactitude, therefore, the income of the deceased should have been assessed with the aid of Minimum Wages Act, but the tribunal has erred in assessing the income of the deceased at Rs. 800/-, without there being any evidence on record regarding the same.
7 . It is no more res integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record.
8. The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act.
9. Although, the deceased was taking tuitions, but since, nothing has been brought on record regarding the educational qualification of the deceased, therefore, at the most, income of FAO No. 324/1999 Page 4 of 8 the deceased could be assessed according to the minimum wages prevalent for skilled workmen for the household chores done by her which was Rs. 749/-pm.
10 . As regards the future prospects I am of the view that there is no sufficient material on record to award future prospects. However, this court is of the view that along with taking the aid of the Minimum Wages Act, the increase in the minimum wages should also be granted. Increase in minimum wages is not akin to future prospects for the reason that inflation eats into the purchasing power of the rupee and to neutralize the falling power of the rupee, wages are increased. A perusal of the minimum wages notified under the Minimum Wages Act show that minimum wages virtually more than double after every 10 years. Therefore to compute the income of the deceased the tribunal ought to have granted increase in minimum wages after doubling the income and taking the mean of the same. Therefore, the same shall also be considered herein. 11 . As regards the contention of the counsel for the appellant that the tribunal has erred in applying the multiplier of 12 in the facts and circumstances of the case, I feel that the tribunal has committed error. This case pertains to the year 1988 FAO No. 324/1999 Page 5 of 8 and at that time II schedule to the Motor Vehicles act was not brought on the statute books. The said schedule came on the statute book in the year 1994 and prior to 1994 the law of the land was as laid down by the Hon'ble Apex Court in 1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In the said judgment it was observed by the Court that maximum multiplier of 16 could be applied by the Courts, which after coming in to force of the II schedule has risen to 18. The age of the deceased was 38 years at the time of the accident and the claimants children were of 13 years and 9 years of age. In the facts of the present case I am of the view that after looking at the age of the claimants and the deceased and after taking a balanced view after considering the applicable multiplier under the II Schedule to the M.V. Act, the multiplier of 15 should have been applied. Therefore, in the facts of the instant case the multiplier of 15 shall be applicable.
12 . On the contention regarding that the tribunal has erred in not granting compensation towards loss of love & affection, funeral expenses, loss of estate and the loss of services, which were being rendered by the deceased to the appellants. In this regard compensation towards loss of love and FAO No. 324/1999 Page 6 of 8 affection is awarded at Rs. 20,000/-; compensation towards funeral expenses is awarded at Rs. 5,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-. 13 . As regards the loss of services, which were being rendered by the deceased to the appellants, the tribunal has already awarded Rs. 37,500/- and I feel that the same does not require any interference.
14 . On the basis of the above discussion, the income of the deceased would come to Rs. 1123.50/- after doubling Rs. 749/- to Rs. 1498/- and after taking the mean of them. After making 1/2 deductions the monthly loss of dependency comes to Rs. 561.75/- and the annual loss of dependency comes to Rs. 6741/- per annum and after applying multiplier of 15 it comes to Rs. 1,01,115/-. Thus, the total loss of dependency comes to Rs. 1,01,115/-. After considering Rs. 72,500/-, which is granted towards non-pecuniary damages, the total compensation comes out as Rs. 1,73,615/-.
15 . In view of the above discussion, the total compensation is enhanced to Rs. 1,73,615/- from Rs. 97,500/- with interest @ 7.5% per annum from the date of filing of the claim petition till realisation and the same should be paid to the FAO No. 324/1999 Page 7 of 8 appellants by the respondent insurance company in the equal share.
16 . With the above direction, the present appeal is disposed of.
13.4.2009 KAILASH GAMBHIR.J.
FAO No. 324/1999 Page 8 of 8