Smt. Zakiya Shamim & Ors. vs Khushi Ram & Ors.
2009 Latest Caselaw 1174 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No.341/99

                        Judgment reserved on: 20.3.2008

%                       Judgment delivered on: 6.4.2009

SMT.ZAKIYA SHAMIM &ORS                       ...... Appellants

                       Through: Mr. J.S. Kanwar

             versus

KHUSHI RAM & ORS.                         ..... Respondent

                       Through: None.

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 reported in the Digest?         No



KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 13.4.99 of

the Motor Accident Claims Tribunal whereby the Tribunal

FAO 341/99 Pages 1 of 8 awarded a sum of Rs.1,12,400/- along with interest @ 12% per

annum to the claimants.

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

3. On 29.6.94, the deceased Sh. Mansoor Ahmed was

travelling in the bus and when it reached near SDM office, the

deceased came to the gate to get down from the bus, but at that

point of time the driver suddenly sped up and started driving the

bus at a high speed in a rash and negligent manner due to which

the deceased fell on the road and sustained several injuries. He

was taken to GTB Hospital where the doctor declared him

brought dead.

4. A claim petition was filed on 18.7.95 and an award was

passed on 13.4.99. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. J.S. Kanwar counsel for the appellants contended that

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

Rs.1382/- 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. 5,000/- per month as tailoring job

comes under skilled category. The counsel submitted that the

tribunal erroneously applied the multiplier of 10 while computing

FAO 341/99 Pages 2 of 8 compensation when according to the facts and circumstances of

the case,the deceased was 42 years old and multiplier of 15

should have been applied. The counsel also raised the

contention that the rate of interest allowed by the tribunal is on

the lower side. The counsel contended that the tribunal has erred

in not awarding compensation towards loss of love & affection,

loss of estate, loss of consortium, and only Rs.2000/- has been

awarded towards funeral expenses.

6. Nobody has been appearing for the respondents.

7. I have heard learned counsel for the appellants and

perused the record.

8. The appellants/claimants did not place on record anything

regarding the income of the deceased. On account of failure of

the appellants to prove the income of the deceased, the tribunal

took aid of the Minimum Wages Act in assessing the income of

the deceased. 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. 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

FAO 341/99 Pages 3 of 8 basis of the minimum wages notified under the Minimum Wages

Act. After considering all these factors, I am of the view that the

tribunal not erred in assessing the income of the deceased as

per Minimum Wages Act. But erred in assessing the income as

notified for an unskilled person instead of skilled person; viz Rs.

1806/- p.m.

9. Furthermore, it has been the consistent view of this court

that whenever aid of Minimum Wages Act is taken while

computing income, then increase in minimum wages should also

be considered. It is well settled that future prospects are not akin

to increase in minimum wages. To neutralize increase in cost of

living and price index, the minimum wages are increased from

time to time. A perusal of the minimum wages notified under the

Minimum Wages Act show that to neutralize increase in inflation

and cost of living, minimum wages virtually double after every 10

years. For instance, minimum wages of skilled labourers as on

1.1.1980 was Rs. 320/- per month and same rose to Rs. 1,083/-

per month in the year 1990. Meaning thereby, from year 1980 to

year 1990, there there has been an increase of nearly 238% in

the minimum wages. Thus, it could safely be assumed that

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

FAO 341/99 Pages 4 of 8

10. Therefore, the tribunal erred in not considering increase in

minimum wages, while assessing the income of the deceased and

same should be considered while computing compensation

towards loss of dependency. Thus taking into account the future

prospectus and applying the formula laid down in Sarla Dixit

Vs. Balwant Yadav 1996 ACJ, 581, the income of the

deceased comes to Rs.2,709/- P.M.

11. The deceased was survived by his wife and 11 kids.

Considering this, i feel that the tribunal ought to have made

deductions to the extent of 1/6. Therefore, the award is modified

to the aforesaid extent in this regard. After deducting 1/6th, the

net loss of dependency comes to Rs.2,258/-P.M.

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

that the tribunal has erred in applying the multiplier of 10 in the

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

committed error. This case pertains to the year 1994 and at that

time II schedule to the Motor Vehicles act was in force on the

statute book. In the facts of the present case and after looking at

the age of the widow to be 36 years and of the deceased to be 42

years at the time of the accident, I am of the view that the

multiplier of 15 should have been applied. Therefore, in the facts

FAO 341/99 Pages 5 of 8 of the instant case the multiplier of 15 shall be applicable. Thus

applying the multiplier of 15, the compensation comes to

Rs.4,06,440/-

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, 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. 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.

FAO 341/99 Pages 6 of 8

13. On the contention regarding that the tribunal erred in not

granting adequate compensation towards loss of love & affection,

loss of estate & Consortium, and Rs.2000/- only towards funeral

expenses. In this regard compensation towards loss of love and

affection is granted at Rs.55,000/-; compensation towards funeral

expenses is enhanced to Rs. 5,000/- and compensation towards

loss of estate is granted to Rs.10,000/-. Further, Rs. 50,000/- is

awarded towards loss of consortium.

14. On the basis of the discussion, the income of the deceased

is assessed to Rs.1806/- after doubling Rs.3612/-since minimum

wages keeps on increasing with the span of time. By taking the

average of both the figures, the amount comes to Rs.2709/-.

After making 1/6th deductions the monthly loss of dependency

comes to Rs.2,258/- and the annual loss of dependency comes to

Rs. 27,096/- per annum and after applying multiplier of 15 it

comes to Rs.4,06,440/-. Thus, the total loss of dependency comes

to Rs.4,06,440/-. After considering Rs. 1,20,000/-, which is

granted towards non-pecuniary damages, the total compensation

comes out as Rs.5,26,440/-.

FAO 341/99 Pages 7 of 8

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

enhanced to Rs. 5,26,440/- from Rs.1,12,400/- with interest @

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

filing of the present petition till realisation and the same should

be paid to the appellants by the respondent insurance company.

16. Out of the enhanced compensation 45% be paid to the

widow of the deceased and remaining be distributed equally

amongst the children. The share of the minor children be kept in

FDR in a Nationalised Bank till they attain the age of majority.

17. With the above directions, the present appeal is disposed

of.

6.4.2009                         KAILASH GAMBHIR, J




FAO 341/99                                            Pages 8 of 8