Delhi High Court
Smt. Renu Malhotra And Ors. vs Shri Shishpal Singh Shingaria on 16 January, 2007
Author: K Gambhir
Bench: K Gambhir
JUDGMENT
Kailash Gambhir, J.
1. The grievance of the appellant in the present appeal is that the Tribunal has not taken into consideration the correct income of the deceased including his future prospects. The appellant is also aggrieved that wrong age of the deceased has been taken into consideration, which as per the immigration papers exhibited as Ex.-PW2/Z and proved on record was 32 years on the relevant date of accident but the Tribunal giving undue weightage to the post mortem report has determined the age of the deceased at 35 years. The brief summary of the facts for deciding the present appeal are as under:
On 5.5.95, Sh. Harvinder Kumar Malhotra, the deceased was traveling in taxi bearing registration No. MH-15B-1684 from Shirdi to Manmad and met with an accident with a truck bearing registration No. DIG-788 at Yeola, Manmad. He received fatal injuries and succumbed to the injuries received in the accident and died on the spot.
2. Mr. Pramod Ahuja, counsel appearing for appellants contends that the brother of the deceased is settled in Canada and after resigning from his previous job, the deceased was about to join his brother at Canada where certainly he would have been employed at a better place and would have earned a better income than the previous one. Counsel thus, contends that the Tribunal ought to have taken into account the future prospects of the deceased. Counsel for the appellant further contends that in the post mortem report, the age of the deceased has been shown as 35 years, while in immigration papers, the age of the deceased is clearly shown as 32 years. Counsel thus, contends that the multiplier of 17 should have been applied after taking into account the age of the deceased at 32 years.
3. Per contra, Mr. P.K. Mishra, counsel appearing for the respondent No. 3 refutes the contentions of counsel for the appellants and contends that even in the absence of any material, the Tribunal has taken into account the future prospects of the deceased. Counsel, thus contends that no interference of this Court is required as far as the determination of income and age of the deceased is concerned. On the age of the deceased, the contention of counsel for the respondent is that the multiplier is same between the age of the deceased from 32 to 35 years as per the Second Schedule of the Motor Vehicles Act and, therefore, also the award is not to be interfered by the Appellate Court. Counsel further contends that the Tribunal has given sufficient reasons in the award for taking into account the multiplier of 14.
4. I have heard learned Counsel for the parties and have perused the record.
5. The Tribunal has already considered the future prospects of the deceased. The deceased was earning a sum of Rs. 60,795/- per annum and the said income was taken at Rs. 61,000/- thereafter the same was doubled which came out as Rs. 1,22,000/- and the mean was taken at Rs. 91,500/- per annum. Once the Tribunal has already taken into account the future prospects of the deceased even in the absence of any material or evidence placed on record by the appellant, therefore, I do not feel inclined to interfere in the said finding of the Tribunal in assessing the income of the deceased at Rs. 91,500/-.
6. On the second contention of counsel for the appellant that the Tribunal has not correctly taken into account the age of the deceased, it appears that the Tribunal has ignored the age of the deceased as has been mentioned in the immigration papers proved by the appellant on record and has determined the age of the deceased after taking note of the same as indicated in the post mortem report. In any case, between the age of 32 to 35 years, the applicable multiplier remains 17 only and, therefore, the said multiplier can be safely taken into consideration. For applying the multiplier of 14, the Court has taken into consideration the judgments of the Supreme Court in U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. ACJ 831 (S.C) and G.M. Kerala State Transport Corporation v. Susamma Thomas .
7. It is no doubt that the Court has taken into account the judgment of the Supreme Court abovementioned but has failed to advance any reason as to why the said judgments were applicable in the facts and circumstances of the present case. The Apex Court in Abati Bezbaruah v. Dy. Director General, Geological Survey of India judgment has clearly held that the structured formula laid down in the Second Schedule should not be normally deviated and if the said criteria is not to be applied in the given case, then sufficient reasons have to be given for deviation there from in the award. The relevant para of Abati Bezbaruah's judgment (supra) is reproduced as under:
11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.
8. I do not find any reason has been given by the Tribunal for deviating from the multiplier enshrined under the IInd Schedule except placing for reliance on the judgments of the Supreme Court.
9. In the light of the above discussion, the multiplier is raised from 14 to 17 as laid down in the Second Schedule of the Motor Vehicles Act. The impugned award is thus modified to this extent. The respondent shall be liable to pay the differential amount after calculating the multiplier of 17 with the multiplicand of Rs. 91,500/-. Rest of the award shall remain same.
10. With these directions, the appeal is disposed of.
