Smt. Mamta Maharana & Ors. vs Purushotam & Ors.
2009 Latest Caselaw 1179 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO No. 153/2003

                     Judgment reserved on: 04.02.2008

%                    Judgment delivered on: 06.04.2009


Smt. Mamta Maharana & Ors.       ...... Appellant
                  Through: Mr. Y.R. Sharma, Adv.

               versus


Purushotam & Ors.                  ..... Respondent
                     Through: Ms. Manjusha Wadhwa, Adv.

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 9 th

December 2002 of the Motor Accident Claims Tribunal whereby

the Tribunal awarded a sum of Rs.29,10,704 along with interest

@ 9% per annum to the claimants.

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

The deceased Sh. Bhagabata Maharana, aged about 31 Yrs. was

working as senior engineer in a renowned company. On 19 th

March 1997, the deceased was driving his two wheeler scooter

bearing registration no. DL 8SC 9826 and was going to his office

and when at about 10:30 A.M. he reached near Shahpur Stand,

opposite Prakash Automobile, Outer Ring Road, Delhi, a truck

bearing registration No. HR 38 7276 driven in a rash and

negligent manner came from the rear and struck against the

scooter. The scooterist fell down on the road and the wheel of the

said truck passed over the head of the deceased and the

deceased received fatal injuries and died at the spot of accident.

3. A claim petition was filed on 7th July 1997 and an award was

made on 9th December 2002. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

4. The appellants have assailed the said award on following

grounds. The counsel for the appellant submitted that the

tribunal has erroneously applied the multiplier of 13 while

computing compensation when according to the facts and

circumstances of the case multiplier of 20 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 only 31 yrs of age at the time of

the accident and would have lived and worked for another 40

years had he not met with his untimely death. The counsel also

stated that had the deceased not met with his untimely death he

would have touched new heights of achievements. He was a

qualified Engineer in Telecommunications and its submitted that

deceased would have joined an MNC and would have been

promoted to a very high and prestigious post and then he would

have been earning atleast 40,000/- per Month. 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 @ 12% per annum in place of only 9% 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. Ms. Manjusha Wadhwa counsel appearing for the

respondent insurance company refuted the said contentions of

counsel for the appellants and submitted that the award passed

by the Learned MACT is already on the higher side and requires

no further interference.

6. I have heard learned counsel for the parties and perused

the record.

7. The appellants claimants produced PW1 Sh. K.S. Gopala

Krishan, Personal Manager of M/s. Bharti Cellular Ltd., the

company with which the deceased was employeed, the said

witness deposed that the deceased was earning Rs. 18,434/- pm

as his salary. The said witness also deposed that Rs. 12,266/- was

deducted from his salary by the employer. On perusal of the

record it is revealed that the said Personnel Manager had issued

a salary certificate wherein it is stated that the deceased joined

the employment with the Bharti Cellular Ltd. on 24/1/1995 at a

salary of Rs. 9,512/- pm plus various perks. It further finds

mention in the said certificate that in less than two and a half

years the deceased quickly rose to the post of Sr. Engg. (Switch)

on a gross salary of Rs. 19,412/- pm plus various perks. The said

certificate also states that had the deceased not died his

untimely death he would have retired with at least a gross salary

of Rs. 2,54,491/- per month plus various perks. On the basis of

the above discussion, it is manifest that the tribunal has not erred

in assessing the income of the deceased at Rs. 18,434/-.

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

is sufficient material on record to award future prospects. On

perusal of the record it is revealed that the Personnel Manager of

Bharti Cellular Ltd. had issued a salary certificate wherein it is

stated that the deceased joined the employment with the Bharti

Cellular Ltd. on 24/1/1995 at a salary of Rs. 9,512/- pm plus

various perks. It further finds mention in the said certificate that

in less than two and a half years the deceased quickly rose to the

post of Sr. Engg. (Switch) on a gross salary of Rs. 19,412/- pm

plus various perks. The said certificate also states that had the

deceased not died his untimely death he would have retired with

atleast a gross salary of Rs. 2,54,491/- per month plus various

perks. On perusal of the award it becomes manifest that the

tribunal considered the future prospects of the deceased.

Therefore, the tribunal committed no error on this count and the

same requires no interference.

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

that the tribunal has erred in applying the multiplier of 13 in the

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

committed error. The deceased at the time of the accident was of

31 years of age, his wife was of 29 years of age, his minor son

was of not even one year and his widow mother was of 56 years

of age. 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 17 should have been applied as per the II Schedule

of the M.V. Act. Therefore, the tribunal erred in applying the

multiplier of 13 and in the facts of the instant case the multiplier

of 17 shall be applicable.

10. As regards the issue of interest that the rate of interest of

9% p.a. awarded by the tribunal is on the lower side and the

same should be enhanced to 12% p.a., I feel that the rate of

interest awarded by the tribunal is just and fair and requires no

interference on this count. 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 @ 9% pa by the tribunal

and the same is not interfered with.

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

not granting adequate compensation towards loss of love &

affection, funeral expenses and loss of estate, whereas, no

compensation has been granted towards loss of consortium and

the loss of services, which were being rendered by the deceased

to the appellants, I feel that the same should have been

considered by the tribunal. In this regard compensation towards

loss of love and affection is awarded at Rs. 20,000/-;

compensation towards funeral expenses is not interfered with

and compensation towards loss of estate is awarded at Rs.

10,000/-. Further, Rs. 50,000/- is awarded towards loss of

consortium.

12. As far as the contention pertaining to the awarding 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.

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

would come to Rs. 27,651 after doubling Rs. 18,434 to Rs. 36,868

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

the monthly loss of dependency comes to Rs. 18,434 and the

annual loss of dependency comes to Rs. 2,21,208 per annum and

after applying multiplier of 17 it comes to Rs. 37,60,536/-. Thus,

the total loss of dependency comes to Rs. 37,60,536/-. After

considering Rs. 1,15,000/-, which is granted towards non

pecuniary damages, which were being rendered by the deceased,

the total compensation comes out as Rs. 38,75,536/-.

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

enhanced to Rs. 38,75,536/- from Rs. 29,10,704/-. The differential

amount shall be paid to the appellants by the respondent

insurance company with up to date interest @ 7.5% pa. on the

enhanced compensation from the date of filing of the petition till

final realisation. The enhanced compensation shall be distributed

amongst the appellants in the same ratio as granted by the

tribunal.

15. With the above directions, the matter is disposed of.

06.04.2009                           KAILASH GAMBHIR, J.