Sh. Rama Nand & Others vs Har Bhajan Singh And Ors.
2009 Latest Caselaw 1171 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                FAO No. 371/1997

                              Judgment reserved on: 4.2.2008
                              Judgment delivered on: 6.4.2009
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Sh. Rama Nand & Others                              ........Appellant
                              Through: Mr. Y.R. Sharma, Advocate

                          Versus

Har Bhajan Singh and ors.            ........Respondent.
                 Through : Mr. D.P. Bhargawa, Advocate for R-1.

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                                 No
     reported in the Digest?

KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated

3.9.1997 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 1,27,780/- along with interest @

12% per annum to the claimants.

2. The brief conspectus of the facts is as follows:

That on 9.5.1992 Sushil Kumar @ Pinto (now

deceased) was paddling his cycle at a slow speed and was

coming to his residence after purchasing milk from M/s Tyagi

General Store, Delhi and when he reached near New Patparganj

Road bus stop and at that very time a tanker bearing registration

No. DHL 3326 driven by respondent No. 1 rashly and negligently

and at a very fast speed came from behind and struck against

the deceased without blowing any horn or giving any signal. With

the result of this forceful impact the deceased fell down along

with his cycle and the front wheel of the said tanker passed over

the deceased and the deceased succumbed to his injuries at the

spot of the accident.

3. A claim petition was filed on 17.8.1992 and an award

was made on 3.9.1997. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

4. Sh. Y.R. Sharma, counsel for the appellants has

assailed the said award on five grounds. Counsel for the

appellants contended that the tribunal erred in assessing the

income of the deceased at Rs. 1738/- per month. The counsel

further maintained that the tribunal erred in making the

deduction to the tune of 50% of the income of the deceased

towards personal expenses when the deceased was supporting

his parents at the time of accident and is survived by his parents.

The counsel submitted that the tribunal erroneously applied the

multiplier of 12 while computing compensation while according to

the facts and circumstances of the case multiplier of 15 should

have been applied. It was urged by the 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 near future as he was of 15 yrs of age

only and would have lived a long life had he not met with the

accident. The counsel also stated that had the deceased not met

with his untimely death he would have expanded his business

and would have earned much more in the near future. It was also

submitted by the counsel that the tribunal did not 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 in

appreciating the fact 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 @ 24% per annum in place of only 12% per annum. 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. In support of his submission counsel for the

appellants has placed reliance on Anari Devi vs Tilak Raj and

Anr. 2005 ACJ 1397.

5. Per contra Mr. Kanwal Chaudhary, counsel appearing

for the respondent/New India Assurance Co. Ltd. refuted the

submissions made by the counsel for the appellant. He

contended that the Award made by the Tribunal is just and fair

and there is no need to interfere with the findings given by the

Tribunal.

6. I have heard learned counsel for the parties and

perused the record.

7. The appellants/claimants had produced one witness

Mr. Naresh Chand Sharma to prove that the deceased was

working at the General store under the name and style of Bharat

General Store running from his residence and was earning Rs.

1500/- p.m. from his General Store. The father of the deceased

entered the witness box as PW5 and deposed that the deceased

was 15 years of age and was studying in 9th standard in the

second shift from 12:30pm to 6:00pm. He further deposed that

he opened the General Store for the deceased and out of it the

deceased was earning Rs.1500/-pm. He deposed that the

deceased used to sit at the said shop from 6:00am to 11:00am

and thereafter his wife/mother of the deceased used to sit at the

shop. The deceased used to sit at the shop in the evening as well,

deposed PW5. The Tribunal, however did not believe the evidence

of the witness that the deceased was running the General Store

and was earning Rs. 1500/- p.m. After considering all these

factors I am of the view that the tribunal has not erred in

assessing the income of the deceased at Rs. 1738/- after

considering minimum wages notified under the Minimum Wages

Act.

8. 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.

9. 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.

10 . Therefore, no interference/ enhancement is made in

relation to income of the deceased by this court.

11. However, a perusal of the minimum wages notified

under the Minimum Wages Act shows that to neutralize increase

in inflation and cost of living, minimum wages virtually double

after every 10 years. Thus, it could safely be assumed that

income of the deceased would have doubled in the next 10 years.

Therefore, the tribunal erred in not considering increase in

minimum wages while assessing income of the deceased.

12 . As regards the contention of the counsel for the

appellant that the 50% deduction made by the tribunal are on the

higher side as the deceased is survived by his parents. In catena

of cases the Apex Court has in similar circumstances made 1/3 rd

deductions. Therefore, I am inclined to interfere with the award

on this ground and modify the award by deducting 1/3 rd expenses

towards personal expenses.

13 . The next contention raised by the counsel for the

appellant was that the tribunal erred in applying the multiplier of

12 in the facts and circumstances of the case. This case pertains

to the year 1992 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 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 of 15 years and his father was of 42 years at the

time of the accident. In the facts of the present case, I am of the

view that, after looking to the age of the claimants and the

deceased and after considering applicable multiplier under M.V.

Act the appropriate multiplier would be of 13.

14 . 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 24% 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, policy being adopted by Reserve Bank of India from

time to time and other economic factors. The award pertains to

the year 1997. 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.

15 . On the contention regarding that the tribunal has

erred in not granting adequate compensation towards funeral

expenses, while, no compensation has been granted towards loss

of love & affection, loss to estate and the loss of services, which

were being rendered by the deceased to the appellants. In this

regard compensation of Rs.10,000/- is awarded towards funeral

expenses instead of Rs. 2500/- as awarded by the tribunal; Rs.

20,000/- is awarded towards loss of love and affection. Further,

Rs. 10,000/- is awarded towards loss to estate.

16 . As far as the contention pertaining to the award of

amount towards mental pain and sufferings caused to the

appellants due to the sudden demise of their only son 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.

17 . On the basis of the discussion, the income of the

deceased would come to Rs. 2,607 after doubling Rs. 1,738 to Rs.

3,476 and after taking the mean of them. After making 1/3rd

deductions the monthly loss of dependency comes to Rs. 1,738

and the annual loss of dependency comes to Rs. 20,856 per

annum and after applying multiplier of 13 it comes to

Rs.2,71,128. Thus, the total loss of dependency comes to Rs.

2,71,128/-. After considering Rs. 40,000/-, which is granted

towards non pecuniary damages, the total compensation comes

out as Rs. 3,11,128/-.

18 . In view of the above discussion, the total

compensation is enhanced to Rs. 3,11,128/- from Rs. 1,27,780/-.

The differential amount shall be paid to the appellants by the

respondent insurance company with interest @ 7.5% per annum

from the date of filing of the petition till realisation. The

differential amount shall be shared by them in equal proportion.

19. With the above direction, the present appeal is disposed of.

6.4.2009                                     KAILASH GAMBHIR,J.