Delhi High Court

Kumari Sugandh & Ors. vs Sh.Jagphool Singh & Ors. on 30 September, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

                   FAO App. No.444/2003

%            Judgment reserved on:11th September, 2008

             Judgment delivered on:30th September, 2008

1. Kumari Sugandh-Minor
   Through her next friend/natural guardian/mother
   Smt. Renu Bansal, rc/o Lala Radhey Shyam Anil
   Kumar, r/o9 WZ-1499, Nangalrai Cantt., New Delhi

2. Late Shri Bhagwan Dass Bansal through L.Rs.

2-a. Sh. Pawan Bansal-Son r/o. A-2-A/3, Janakpuri,
    Delhi-58

2-b. Shri Ashwini Bansal-Son r/o. A-2-A/3, Janakpuri,
     Delhi-58.

2-c. Smt. Usha Goel wife of Shri Satish Kumar-
     D/o. r/o. C-6/66, Keshav Puram, Delhi-35.

2-d. Smt. Sheela Gupta W/o. Sh. Murli Gupta-
     D/o. r/o.K-5/90, Gali No.27, Bhagat Singh Chowk,
     Bahajanpura, Delhi.

2-e. Smt. Neena Gupta W/o. Shri. Parveen Gupta-
     D/o. r/o. 232, Ram Nagar, Ambala City, Haryana

3.   Smt. Kela Rani
     A-2A/3, Janakpuri, Delhi-58          ....Claimants.

                   Through: Ms. Sushma Aggarwal, Adv.

                            Versus

1. Sh. Jagphool Singh S/o. Sh. Subhash Chander
   (Owner), Dhamdahera District Gurgaon (Haryana)
FAO. No.444/2003                            Page 1 of 14
 2. Sh. Dharamveer S/o. Sh. Bansi Lal (Driver)
   VillageManithi, P.S. Khol, District Rewari (Haryana)

3. M/s. Mewat Financiers
   E-150, East of Kailash, New Delhi

4. The New India Assurance Co. Ltd.
   Dhamdera, Distt. Gurgaon (Haryana)

   Also At:-
      The New India Assurance Co. Ltd.,
      Regional Office No.1, Jeevan Bharti Building,
      5th Floor, Tower-II, 124, Connaught Place,
      New Delhi-1.                  ...Respondents.

                     Through: None.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     Yes

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

V.B.Gupta, J.

Appellants have filed present appeal under Section

173 of the Motor Vehicles Act, 1988 (for short as „Act‟)

seeking enhancement of the compensation awarded in this

case vide judgment dated 20th January, 2003 passed by Ms.

Rekha Sharma, J. (the then Judge, MACT) (for short as

„Tribunal‟).

2. The Tribunal in this case awarded a compensation of

Rs.6,34,272/- along with interest @ 9% p.a. from the date

of filing of petition till realization.

3. Initially, the claim petition was filed by one Smt. Renu

Bansal, (widow of Lt. Abhimanyu Bansal). Sh. Bhagwan

Das Bansal (father of deceased) and Smt. Kela Rani,

appellant No.3, herein (mother of deceased).

4. During the course of trial, an application was filed for

deleting the name of Smt. Renu Bansal, as well as

appellant No.1, Kumari Sugandh (Minor), from the array of

the parties.

5. It was stated in the application that Smt. Renu Bansal

has re-married and had also taken appellant No.1, with her,

where she was being brought up as a member of the family

of her new husband.

6. That application was partly allowed vide order dated

2nd June, 1998 passed by the Tribunal, holding that in view

of the second marriage of Smt. Renu Bansal, she was not

entitled to claim compensation. Accordingly, her name was

deleted from the array of the petitioners. However, no

order for deletion was passed in respect of appellant No.1.

7. The facts relevant for disposal of the present appeal

are, that on 11th November, 1995 at about 3.30 p.m., Sh.

Abhimanyu Bansal was going from Dhaula Kuan to Janak

Puri on his motorcycle No.DL-4S-K-5713. When he reached

the round about at Dhaula Kuan, Police Picket, a truck No.

HNG-4116, which was being driven by respondent No.2 in

a rash and negligent manner, struck against his

motorcycle. As a result of the impact, Abhimanyu Bansal

fell down on the road and died instantaneously. He was

taken to Safdarjung Hospital where he was declared

"brought dead".

8. Summons of the claim petition were sent to the owner

of the truck/respondent No.1, its driver/respondent No.2,

the financer of the offending truck/respondent No.3 and

respondent No.4/Insurance Company, with whom the truck

was insured.

9. None of the respondents, except the Insurance

Company responded to the summons.

10. The Insurance Company, in its written statement

denied its liability to pay compensation. It was inter-alia

alleged, that the driver of the offending truck did not

possess a valid and effective driving licence. However, the

factum of insurance of the offending truck had not been

disputed.

11. Vide impugned judgment, out of the awarded amount,

50% was ordered to be paid to appellant No.1 and the

same was to be kept in Fixed Deposit till she attains the

age of majority. Remaining 50% was ordered to be paid in

equal proportion to appellant No.2, Sh. Bhagwan Das

Bansal, (father of deceased) and appellant No.3.

12. 50% of the amount awarded to appellant No.3, was

ordered to be kept in FD for a period of 5 years, while the

remaining amount was ordered to be released to her.

13. During the course of the present proceedings,

appellant No.2 (father of deceased) has expired and his

Legal Heirs have been brought on record and amended

memo of parties has already been filed.

14. Notice of this appeal was issued to all the

respondents.

15. Respondents No.1 to 3 were served by publication but

there was no appearance on their behalf.

16. Counsel for respondent No.4/Insurance Company had

put in his appearance for the first time in this Court on 9 th

January, 2004. Later on, counsel for Insurance Company

appeared on certain dates but thereafter absented.

17. Vide order dated 8th March, 2006, Court notice was

ordered to be issued to respondent No.4.

18. As per record, respondent No.4 was duly served for

8th May, 2006 but nobody appeared on behalf of the said

respondent.

19. Later on, counsel for respondent No.4 appeared but

again w.e.f. 9th August, 2007, none appeared for

respondent No.4.

20. Thereafter, many dates were fixed for hearing, but

none appeared on behalf of respondent No.4.

21. On 11th September, 2008, as counsel for the appellant

was present and none had been appearing on behalf of

respondents for the last so many dates, the arguments in

this case were heard.

22. It has been contended by the learned counsel for

the appellants that the trial Court has committed a

mistake in not considering, Rs.4,370/- per month, as

the starting salary and there was no ground not to rely

upon the statement of father who has stated that the

deceased being a well qualified person, there was

every chance for him to rise to a high position in his

life, if he had been live.

23. Another contention is that as per statement of the

father of the deceased, the deceased was contributing

Rs.4,000/- p.m. towards household expenses and there

is nothing on record to disbelieve this statement.

24. Other contention is that, the Trial Court has erred

in not considering the future prospects of advancement

in life and career while, there is evidence with regard

to rise in the future income of the deceased as per the

statement of father of the deceased.

25. Lastly, the Trial Court has committed a grave

mistake in awarding only Rs.15,000/- towards loss of

love, affection and funeral expenses and interest @ 9%

p.a. considering the present low rate of interest, while

the deceased died in fatal accident in 1995, when rate

of interest was high and as such the Trial Court should

have granted the interest at least @ 12% p.a.

26. Regarding salary, the Trial Court held that;

"The question which next arises for consideration is about the amount of compensation to which the petitioners are entitled. It come in the evidence of father of the deceased, Petitioner Shri Bhagwan Das, that deceased was earning Rs.4,300/- at the time of his death. He also proved his salary certificate on record as Ex.PW1/3. It is mentioned in Ex.PW1/3 that the basic salary of the deceased was Rs.3,800/-

per month. It also mentioned therein that he was getting bonus at the rate of 15% per annum. Keeping these two components of his income in view, I accept the testimony of the witnesses that the last drawn salary of the deceased was Rs.4300/- even otherwise, the evidence so given was not called into question, in as much as, the witness was not subjected to any cross-examination."

27. Thus, I do not find any infirmity or illegality by

the Trial Court on this count.

28. As regards future prospects, there is no dispute

with the proposition that future advancement in life

and career of the deceased could form a valid factor or

consideration for determination of his/her gross

income as held by the Apex Court in a number of

cases. But this is not to be done as a matter of course.

Some proof is required to be furnished for this.

29. In Bijoy Kumar Dugar v. Bidyadhar Dutta and

Ors., AIR 2006 SC 1255, the Apex court has

observed as under;

"The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income."

30. Thus, the future prospects cannot be granted,

unless there is evidence to this effect on record.

31. There is no evidence other than statement of PW1

on record to prove that the deceased was in a trade

where he would have earned more from time to time or

he had special merit or qualification or opportunities,

which would have led to an improvement in his

income.

32. Thus, in view of the facts of the case, I do not find

any force in the contention of the learned Counsel for

the appellants that the Tribunal has not taken into

consideration the future increase in the income of the

deceased.

33. As regards to the compensation on account of loss

of love, affection and funeral expenses, the Tribunal

has awarded the sum of 15,000/- on this account.

34. The Second Schedule of the Act provides, fixed

amount of compensation towards funeral expenses as

Rs.5,000/.

35. Further, as per Second Schedule of the Act, no

compensation can be given for loss of love and

affection. However, the Tribunal has awarded Rs.

15,000/- on this account. Thus, no fault can be found

with the findings of the Tribunal on this count.

36. As regards the award of interest @ 9% per annum

by the Tribunal, I do not find any justification for

increasing the same to 12% p.a., as there has been

variation in the rate of interest as per the Bank Rates,

prevailing of the relevant time.

37. In Abati Bezbaruah v. Deputy Director

General, Geological Survey of India, (2003) 3 SCC

148, the Apex Court has observed as under;

"The question as to what should be rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time."

38. In view of the above decision, I am of the opinion

that the award of interest @ 9% cannot be considered

to be on lower side. I am, therefore, not inclined to

interfere in the discretion exercised by the Tribunal, in

awarding 9% interest on the award amount.

39. An important fact which is not to be lost sight of

is that as per record, the claim petition before the

Tribunal was earlier filed by Smt. Renu Bansal, who is

the widow of the deceased. However, during the

course of trial, an application was filed for deleting the

name of Smt. Renu Bansal as well as appellant No.1

i.e. Kumari Sugandh (minor) from the arrays of the