Smt. Chand Mehta & Ors. vs Umed Singh & Ors.
2009 Latest Caselaw 1173 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

     +              FAO No. 253/93

                          Judgment reserved on: 4.2.2008
     %                    Judgment delivered on: 6.4.2009


     Smt. Chand Mehta & Ors           ......... Appellants
                        Through: Mr. Y.R. Sharma, Advocate.

               versus


     Umed Singh & Ors.            ..... Respondents
                   Through: None.



     CORAM:
     HON'BLE MR. JUSTICE KAILASH GAMBHIR

     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


     KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 1 st

September 1993 of the Motor Accident Claims Tribunal whereby

the Tribunal awarded a sum of Rs. 1,54,000 along with interest @

12% per annum to the claimants.

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

The deceased Radhey Sham Mehta, aged about 30 yrs met with

an accident on 6th December 1983 while he was crossing the

road on Boulward Road, opposite Tis Hazari Courts, a DTC bus

bearing registration No. DLP- 1425 hit the deceased causing

serious injuries to him. The deceased succumbed to the injuries

on 8th December 1985.

3. A claim petition was filed on 25th February 1986 and an

award was passed on 1st September 1993. Aggrieved with the

said award enhancement is claimed by way of the present

appeal.

4. The appellants have assailed the said award on various

grounds. Mr. Y.R. Sharma, Counsel for the appellants contended

that the tribunal erred in assessing the income of the deceased at

Rs. 800/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the deceased at Rs. 1,500/-per month. The counsel

further maintained that the tribunal erred in computing the

annual dependency of the appellants at Rs. 7,600/-. The counsel

submitted that the tribunal has erroneously applied the multiplier

of 25 while computing compensation when according to the facts

and circumstances of the case multiplier of 45 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 30 yrs of age only and would

have lived for another 45yrs had he not met with the accident.

The counsel also stated that the Tribunal erred in holding that the

accident occurred due to contributory negligence of the deceased

to the extent of 30% where as the said accident was caused due

to the sole negligence of the rash and negligent driving of the

driver of DTC bus only and thus no deduction on account of

contributory negligence should have been made. It was also

submitted by the counsel that the tribunal erred in fixing half of

the share of the amount awarded to the appellant No. 1. to be

put in fixed deposit for a period of 5 years. Such defer payment

should not be there when there has been a huge time lapse in

the disposal of appeal itself. 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 @ 18% 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.

5. Nobody has been appearing for the respondents.

6. I have heard the learned counsel for the appellants and

perused the record.

7. The appellants claimants had produced many witnesses,

including the employer of the deceased. As per the deposition of

Sh. Kamal Kapoor his employer, PW4, and his wife, PW5, he was

in a private service and was earning an amount of Rs 800/- pm

and regarding this salary certificate, Ex. PW 4/A, of the deceased

was proved on record. According to the said certificate, he was

employed as an assistant on retainership basis with PW4. It was

also the case of the appellants that the deceased was also

earning Rs. 700/- pm from part time job of teaching etc. But no

evidence in this regard was brought on record. The tribunal

observed in the award that Pw4 also deposed that the deceased

was working with him from 10:00-6:00 pm; therefore, it cannot be

possible for the deceased to do any other part time job.

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. In the

absence of proof of part time job done by the deceased for the

purpose of income reliance can only be placed on Ex.PW4/A.

9. 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. 800 pm.

10. As regards the future prospects I am of the view that there

is no sufficient material on record to award future prospects.

Therefore, the tribunal committed no error in not granting future

prospects in the facts and circumstances of the case.

11. As regards the contention that the tribunal erred in

calculating loss of dependency of Rs. 7,600/- p.a, I do not feel

that the same needs to be interfered. Out of Rs. 9600/- p.a.

obviously the deceased must be spending Rs. 2000/- p.a. on

himself. Be that as it may, if we apply unit method then the

deduction towards personal expenses would come to Rs. 2,000/-.

Therefore, I do not feel inclined to interfere with the award on this

count.

12. As regards the contention of the counsel for the appellant

that the tribunal erred in applying the multiplier of 25 in the facts

and circumstances of the case, I feel that the tribunal has

committed error. This case pertains to the year 1985 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 30 years, his

widow wife was aged 28 years and his two children were aged 9

½ and 5 ½ years at the time of the death of the deceased. In the

facts of the present case I am of the view that after looking at the

age of the claimants and the deceased the multiplier of 15 should

have been applied. Therefore, in the facts of the instant case the

multiplier of 15 could be more appropriate. But in the interest of

justice and in the absence of any defence been taken by the

respondents, I do not feel inclined to interfere with the award on

this account, therefore, the multiplier of 25 shall be applied in the

instant case.

13. 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 18% 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 award of interest @ 12% pa by

the tribunal and the same is not interfered with.

14. On the contention regarding that the tribunal has erred in

not granting adequate compensation towards loss of love &

affection and loss of consortium and whereas, no compensation

has been granted towards the loss of services, which were being

rendered by the deceased to the appellants, funeral expenses

and loss of estate. In this regard compensation towards loss of

love and affection is enhanced to Rs. 20,000/-; compensation

towards funeral expenses is awarded at Rs. 5,000/- and

compensation towards loss of estate is awarded at Rs. 10,000/-.

Further, Rs. 50,000/- is awarded towards loss of consortium in

place of Rs. 15,000/-.

15. 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 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.

16. The omission to do what the law obligates or even the

failure to do anything in a manner, mode or method envisaged by

law would equally and per se constitute negligence on the part of

such person. If the answer is in the affirmative, it is a negligent

act. Where an accident is due to negligence of both parties,

substantially there would be contributory negligence and both

would be blamed. In a case of contributory negligence, the crucial

question on which liability depends would be whether either party

could, by exercise of reasonable care, have avoided the

consequence of the other's negligence. Whichever party could

have avoided the consequence of the other's negligence would

be liable for the accident. If a person's negligent act or omission

was the proximate and immediate cause of death, the fact that

the person suffering injury was himself negligent and also

contributed to the accident or other circumstances by which the

injury was caused would not afford a defence to the other.

Contributory negligence is applicable solely to the conduct of a

plaintiff. It means that there has been an act or omission on the

part of the plaintiff which has materially contributed to the

damage, the act or omission being of such a nature that it may

properly be described as negligence, although negligence is not

given its usual meaning. It is now well settled that in the case of

contributory negligence, courts have the power to apportion the

loss between the parties as seems just and equitable.

Apportionment in that context means that damage is reduced to

such an extent as the court thinks just and equitable having

regard to the claim shared in the responsibility for the damage.

17. The contention of the appellants is that the tribunal erred in

holding that the deceased was also 30% liable for the accident.

On perusal of the award it becomes manifest that the offending

bus was at the bus stop outside the Tis Hazari Courts and there

was a heavy traffic and many buses were also standing. It is a

matter of fact that at around 10:30 am on weekday the area

around the Tis Hazari Court Complex is crowded and there is a lot

of hustle bustle. According to the respondents the offending bus

was behind another bus and the moment it started after the

passengers boarded the bus, the deceased alighted from the bus

standing ahead of the impugned bus and he came in front of the

offending bus and due to short distance even after applying the

brakes he could not be saved. On perusal of the award it comes

in to light that there are certain loopholes in the testimony of

PW3, the eyewitness produced by the appellants. It is evident

that the deceased was crossing the road just in front of the bus

stop and was going towards the other side of the bus stop. A

great duty of care is on the drivers of the vehicle near the bus

stops for usually people cross the road in a hurry in order to catch

the bus and cross the road etc. Even the tribunal noticed that it

is not uncommon that on the bus stops sometimes several buses

reach at one and the same time and stand one behind the other

and passengers alight from one bus and run to board another bus

and while doing so, the passengers who alight from a bus come in

front of the bus behind the bus from which they alighted. Thus, I

do not find any infirmity as regards the 30% liability of the

deceased.

18. As regards the contention of the appellant that the tribunal

erred in fixing half of the share of the amount awarded to the

appellant No. 1 widow of the deceased, to be put in fixed deposit

for a period of 5 years, it would be relevant to peruse the

judgment of the Hon'ble Apex Court in Lilaben Udesing Gohel

vs. Oriental Insurance Co. Ltd. - 1996 ACJ 673 (SC), wherein

having regard to the fact that day in and day out thousands of

rupees are paid by way of compensation to various categories of

claimants, the Hon'ble Apex Court indicated few broad guidelines

which the Claims Tribunals may follow while disposing of claim

applications arising under the Motor Vehicles Act, 1939, to scotch

complaints of misapplication of compensation money:

( i ) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long-term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn;

( ii ) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in ( i ) above, but if lump sum payment is required for effecting purchases of any moveable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;

( iii ) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at ( i ) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding existing business or for purchasing some property as mentioned in ( ii ) above for earning his livelihood, in which case the Tribunal will ensure

that the amount is invested for the purpose for which it is demanded and paid;

( iv ) In the case of literate persons also the Tribunal may resort to the procedure indicated in

(i) above, subject to the relaxation set out in ( ii ) and ( iii ) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

( v ) In the case of widows the Claims Tribunal should invariably follow the procedure set out in ( i) above;

( vi ) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; ( vii ) In all cases in which investment in long-term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

( viii ) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated.

In view of the above, I do not feel inclined to interfere with the

award in this regard.

19. In view of the above discussion, the total compensation is

enhanced to Rs. 1,92,500/- from Rs. 1,54,000/- with interest @

7.5% per annum as the enhanced compensation from the date of

filing of the petition till realisation and the same should be paid to

the appellant by the respondents.

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

6.4.2009                                KAILASH GAMBHIR, J