Smt. Maharani And Ors. vs Shri Sumer Singh And Ors.
2008 Latest Caselaw 599 Del

JUDGMENT

Kailash Gambhir, J.

1. The present appeal arises out of the award dated 3/2/2002 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 2,08,000/- along with interest @ 12% per annum to the claimants.

2. The brief conspectus of facts are as follows:

On 16/9/1987, the deceased Sh. Prem Pal along with his brother boarded the bus bearing registration No. DEP 6595 from Jawala Puri Market bus stop for going to Chanakyapuri which was plying under DTC operation on route No. 944. The bus was over crowded and at about 7:35 PM when the bus reached Madipur bus stop and halted there, the deceased moved near the foot board near the exit gate so that other passengers could alight from the bus. The passengers were still alighting from the bus and without noticing this, Sh. Vijender Singh the bus driver started the bus with a jerk and accelerated the bus in order to overtake a private bus, which was standing at the bus stop. Due to the sudden jerk, the deceased fell down from the bus and collided against the private bus standing at the bus stop and received fatal injuries. From the site of accident he was taken to the ESI hospital and from there he was referred to the RML hospital, where he took his last breath on 21/9/1987. A claim petition was filed before the Motor Accident Claims Tribunal and award in this regard was made on 3/2/2000. Aggrieved with the said award, the present appeal is preferred by the appellants claimants for enhancement of compensation.

3. Ms. Aruna Mehta, counsel for the appellants has assailed the award on various grounds. Firstly, it is urged that at the time of the accident the deceased was 30 yrs of age and was working as a mali with the Horticulture Department of CPWD and was earning Rs. 1032 pm and would have been drawn a salary of Rs. 2068 pm in the year 1995, therefore, the tribunal should have taken the income of the deceased at Rs. 2000 pm. The counsel further contended that thereafter, the tribunal should have deducted 1/4th income towards personal expenses of the deceased and then the multiplier of 18 should have been applied by the tribunal for the purpose of computation of compensation. The counsel also pointed out that the colleagues of the deceased are presently drawing Rs. 7,000- 8,000 pm as their salary. The counsel submitted that the impugned award has been made by the tribunal in ignorance of the decision of the Apex Court in Trilok Chandra v. State of UP ACJ 1998 831 (SC), wherein the highest bar of multiplier was raised to 18yrs due to inflation and devaluation of money, which is step ahead over the judgment of the Apex Court in General Manager, Kerela State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors. . The counsel maintained that in the said judgment of Susamma Thomas (supra) , the Hon'ble Supreme Court had awarded Rs. 15,000 each, under the conventional heads of damages of loss of consortium and loss of estate, whereas the tribunal in the present case has only awarded a combined sum of Rs. 15,000 under these heads of damages. The counsel also urged that deceased had suffered mental pain and agony for about 6 days and therefore, the appellants should be compensated with at least Rs. 5000 on the said ground. The counsel also pleaded for enhancing the rate of interest from 12% pa as awarded by the tribunal to 15% pa.

4. The counsel for the appellants has relied upon following judgments:

(1) Swaran Kanta Seth and Ors. v. Vijay Aggarwal and Ors. I (2003) ACC 70 (Del);

(2) Daya Arora and Ors. v. Kapur Singh and Anr. 2006 (1) TAC 353 (Del);

(3) Bhagyamma and Ors. v. Sandeep Crane and Trailer Service and Anr. 2001 ACJ 12 (SC);

(4) Sarla Dixit and Anr. v. Balwant Yadav and Ors. ;

(5) P.K. Krishnan Nair and Ors. v. K. Karukaran Nair and Ors. 1986 ACJ 41 (Ker)(DB).

5. Per contra, Sh. P.K. Seth, counsel for Respondent insurance company vehemently refuted the contentions of counsel for the appellant. The counsel maintained that the tribunal has rightly assessed the loss of dependency after taking into consideration the entire evidence placed on record and after perusal of the guidelines laid down by the higher courts. The counsel further denied that the tribunal ought to have awarded damages to the tune of Rs. 30,000 each under the heads of damages of loss of consortium and loss of estate. The counsel also urged that the rate of interest @ 12% awarded by the tribunal is already on the higher side and needs no further enhancement. Finally, the counsel prays for the dismissal of the present appeal.

6. I have heard counsel for the parties and have perused the record. The deceased in the present case was employed with CPWD as a Mali as per the deposition of PW-7, M.L. Sharma, who was an official from the office of CPWD. The monthly emoluments of the deceased at the relevant time of accident were Rs. 1028/- although he was employed in the said office w.e.f. 30th June, 1979. The statement of the said witness was recorded on 8.8.1995 and the said witness stated that as on the date of his deposition the salary of the deceased would have certainly risen to Rs. 2068/- per month. The Tribunal has taken into consideration the said increased income of the deceased from Rs. 1028/- to 2068/- per month and taking the average of both the incomes has arrived at the figure of Rs. 1548/-. The Tribunal has also deducted 1/3rd of the said income towards the personal expenses of the deceased and after this deduction the monthly dependence of the deceased was assessed at Rs. 1030/-. Once the Tribunal has taken into consideration the increased income, therefore, no grievance can be made on the finding of the Tribunal on the ground that the future prospects of increase in the income of the deceased has not been taken into consideration. Thus, there is no merit in the submission of the counsel for the appellants that the Tribunal has ignored the future prospects of the deceased.

7. 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 1987 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 deceased was aged 30 years at the time of the accident. He is survived by his mother aged 50 years, widow wife aged 25 years and a minor son aged 1 ' years at the time of the accident. Taking into consideration totallity of the facts of the present case and to strike a balance between the judgment of the Apex Court in Susamma Thomas (supra) and multiplier as laid down in the II Schedule of Motor Vehicles Act, I am of view that the multiplier of 15 should be more appropriate. Therefore, in the facts of the instant case the multiplier of 15 shall be applicable.

8. As regards the contention of the counsel for the appellant that the 1/3rd deduction made by the tribunal are on the higher side as the deceased is survived by his mother aged 50 years, widow wife aged 25 years and a minor son aged 1 ' years, I feel that the tribunal committed no error. In catena of cases the Apex Court has in similar circumstances made 1/3rd deductions. Therefore, I am not inclined to interfere with the award on this ground.

9. As regards the contention of the counsel for the appellants that no amount has been awarded in favor of the appellants towards pain and sufferings suffered by the appellants due to sudden death of the deceased and also the pain and sufferings suffered by the deceased himself for a period of 6 days during which period he remained hospitalized. Counsel for the appellant has placed reliance on the judgment of this Court reported in I (2003) ACC 70 Swaran Kanta Seth and Ors. v. Vijay Aggarwal and Ors. and 2006 (1) TAC 353 (Del) Daya Arora and Ors. v. Kapur Singh and Anr. In Daya Arora's case (Supra) this Court has granted Rs. 1 lakh on account of the pain and sufferings for the death of their son for an accident, which took place in the year 1985. Similarly in Swaran Kanta Seth's case (Supra) also this Court has taken into consideration the entitlement of the claimants for award of compensation on the ground of pain and sufferings. In this regard the Apex Court observed in N. Sivammal v. Pandian Roadways Corporation , as under:

4. Thereafter, the High Court proceeded meticulously to examine every item of compensation included in the award. The High Court held that award of Rs 5000 under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained. This is only the different way looking at the same thing which is legally permissible. Muthukrishnan lived for 19 days since the accident and he was throughout under a shadow of death. He had suffered severe injuries. He must have suffered continuous pain and compensation was admissible for pain and suffering, suffered by the deceased. Therefore, the amount of Rs 5000 which the High Court held inadmissible, is legitimately admissible under another head and therefore by changing the head we restore the amount of Rs 5000 awarded by the Tribunal.

10. In view of the above discussion, no compensation can be awarded regarding pain and sufferings caused to the appellants claimants due to the untimely death of the deceased.

11. The appellants have also claimed compensation for loss of love and affection as this head too has been ignored by the Tribunal. Considering the fact that the deceased was survived by his widow mother and one minor son at the time of the accident, which occurred in the year 1987, an award of Rs. 20,000/- towards loss of love and affection would meet the ends of justice. The appellants are also aggrieved with the meager amount of Rs. 15,000/- awarded towards the loss of consortium and loss to the estate and loss of expectation of life. A person of the young age of 30 years had died leaving behind a widow of very young age and a minor son. Although I find merit in the submission of the counsel for the respondent that the compensation has to be awarded taking into consideration the entitlement of the family relevant to the date of accident and the enhancement cannot be allowed to be made at the present currency value as in a period of 20 years the currency value has considerably denunciated and high inflation has taken place. This argument of the respondent could have been appreciated had the compensation case filed by the appellants involving the accident of the year 1987 would have finally been decided within a period of one or two years. The impugned order itself has been passed after a long gap of 13 years and it is only in the year 2000 that the appellants were found entitled for the said award amount. The award of Rs. 15,000/- in the year 2000 towards loss of consortium, loss to the estate and loss of expectation of life no doubt is quite on the lower side. The same is enhanced to Rs. 50,000/- and Rs. 10,000/- is awarded towards loss of estate. Loss of expectation of life is not a conventional head of damages, therefore, no compensation shall be awarded in this regard.

12. 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 case and taking in to consideration relevant factors including inflation, change of economy, 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 awarding of interest @ 12% pa by the tribunal and the same is not interfered with.

13. The respondent shall now pay the differential amount along with the up to date interest @ 6% per annum from the date of the filing of the petition till 31-12-1999 and @ 7.5% w.e.f. 1-1-2000 till realization. With these directions, the present appeal is remitted back to the Tribunal for apportionment of the differential amount of compensation in favor of the appellants.

14. In view of the above discussion, the present appeal of the appellants is disposed of.