IN THE HIGH COURT OF DELHI AT NEW
DELHI
FAO NO.112/94
Judgment reserved on:4.3.2008
Judgment delivered on:4.5.2009
Hans Kaur ......Appellant
Through Mr.O.P.Goyal, Adv
Versus
Bhola Ram & Ors. ........ Respondents
Through: Ms.Shanta Devi Raman, Adv
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 18/1/1994 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 79,200/- along with interest @ 12% per annum to the claimants.
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2. The brief conspectus of the facts is as follows:
3. On 12.10.78 at about 8.10 p.m deceased Charan Singh was standing at the bus stop of IP Estate Depot, Ring Road, New Delhi for checking purposes. He was traffic inspector working with Delhi Transport Corporation. The offending truck no. DHL 548 which was being driven by respondent no.1 Bhola Ram in a rash and negligent manner struck against the deceased forcefully as a result of which he died at the spot.
4. A claim petition was filed on 3/1/1979 and an award was passed on 18/1/1994. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. O.P. Goyal Ld.counsel for the appellants contended that the tribunal erroneously applied the multiplier of 6 while computing compensation while according to the facts and circumstances of the case multiplier of 13 should have been applied. It was urged by the ld. counsel that the tribunal erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased would have earned much more in future as he was of 48 yrs of age only and would have lived for another 20-30yrs had he not met with the accident. It was also contended by the Ld.counsel that the tribunal did not FAO No. 112/94 Page 2 of 8 consider the fact that due to high rates of inflation the deceased would have earned much more in near future and the tribunal also failed to appreciate that even the minimum wages are revised twice in an year and hence, the deceased would have earned much more in his life span. The counsel also raised the contention that the rate of interest allowed by the tribunal is on the lower side and the tribunal should have allowed simple interest @ 15% per annum in place of only 12% per annum. The counsel contended that the tribunal 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. The counsel urged that although there is the limited liability of the insurance company but the insurance company is liable to compensate the third party and then recover from the insured.
6. Nobody appeared for the respondents.
7. I have heard the learned counsel for the appellants and perused the record.
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8. As per the case of the appellants the deceased was a traffic inspector in DTC and was earning Rs. 800/- pm. PW4 a colleague of the deceased deposed that had the deceased not met with the accident he would have been earning Rs. 2100-2200/-pm as an Asst. Traffic Supervisor. The tribunal considering the same assessed the income of the deceased as Rs. 1600/- pm. Although, the tribunal considered the future prospects of the deceased but committed error in computing the same. The tribunal ought to have assessed the same by doubling Rs. 800/- and taking mean of both of them and thus, Rs.1200/- would have been the income of the deceased. But considering that no dispute has been raised in this regard by the respondents, no interference is made in the award.
9. As regards the contention of the counsel for the appellant that the tribunal has erred in applying the multiplier of 6 in the facts and circumstances of the case, I feel that the tribunal has committed error. This case pertains to the year 1978 and at that time II schedule to the Motor Vehicles act was not brought on the statute book. 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 FAO No. 112/94 Page 4 of 8 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 at the time of the accident was 49 years and he is survived by his widow and five children. In the facts of the present case, I am of the view that looking at the age of the claimants and the deceased and after taking a balanced view considering the multiplier applicable as per the II Schedule to the MV Act, the multiplier of 11 shall be applicable.
10. As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 15% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon'ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the FAO No. 112/94 Page 5 of 8 case and taking in to consideration relevant factors including inflation, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.
11. On the contention regarding that the tribunal has erred in not granting compensation towards loss of love & affection, funeral expenses, loss of estate, loss of consortium and the loss of services, which were being rendered by the deceased to the appellants. In this regard compensation towards loss of love and affection is awarded at Rs. 50,000/-; compensation towards funeral expenses is awarded at Rs. 10,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-.
12. As far as the contention pertaining to the awarding of amount towards mental pain and sufferings caused to the appellants due to the sudden demise of the deceased and the loss of services, which were being rendered by the deceased to the appellants is concerned, I do not feel inclined to award any amount as compensation towards the same as the same are not conventional heads of damages.
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13. As regards, recovery rights to the insurance company, the counsel for the appellants has pointed out that although there is the limited liability of the insurance company but as per a box titled 'IMPORTANT NOTICE' in the policy Ex. RW1/1 the insurance company is liable to compensate and pay the entire award amount to the claimants as awarded under MV Act and then recover from the insured. Perusal of Ex.RW1/1 indicates that in the box 'IMPORTANT NOTICE' it has been mentioned as :
'The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule any payment made by the company in the certificate in order to comply with the Motor Vehicles Act 1939 is recoverable from the insured. Clause: AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY'.
14. I Consider that if read carefully, this clause does not come to rescue of the appellants in the present facts and circumstances. Ld.Tribunal has rightly held that the liability of the insurance company is limited to RS.50,000/- and there is no reason to interfere in the same.
15. On the basis of the discussion, the income of the deceased as assessed by the tribunal would come to Rs. 1,600/-. After making 1/3rd deductions the monthly loss of dependency comes to Rs. 1100/- and the annual loss of dependency comes to Rs. 13,200/- per annum and after applying multiplier of 11 it comes to Rs. 1,45,200/-. Thus, the total loss of dependency comes to Rs. FAO No. 112/94 Page 7 of 8 1,45,200/-. After considering Rs. 1,70,000/-, which is granted towards non-pecuniary damages, the total compensation comes out as Rs. 2,15,200/-.
16. In view of the above discussion, the total compensation is enhanced to Rs. 2,15,200/- from Rs. 79,200/- with interest on the differential amount @ 7.5% per annum from the date of filing of the petition till realisation and the same shall be paid to the appellants by the respondent insurance company in the same proportion as awarded by the tribunal within 30 days of this order.
17. With the above directions, the present appeal is disposed of.
May 04, 2009 KAILASH GAMBHIR, J
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