Bharpai Devi & Ors. vs Dharamvir Singh & Ors.
2009 Latest Caselaw 1181 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 211 of 1993

                          Judgment reserved on: 4.2.2008

%                            Judgment delivered on: 6.4.2009


Bharpai Devi & Ors.                             ...... Petitioner
                      Through: Mr. P.N. Talwar, Adv.
                 versus


Dharamvir Singh & Ors.                       ..... Respondents
                   Through: Nemo

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 19th May

1993 of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 60,000/- along with no interest.

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

3. On 31st January 1981 at about 10 P.M. the deceased Sh.

Jawahar Singh was coming to his residence and when he reached

at Samaipur Chowk, Auchandi Road, Delhi a DTC bus bearing

registration No. DHP-3026 hit the deceased causing fatal injuries

to him. The deceased was immediately removed to the Hindu Rao

Hospital where he was declared brought dead.

4. A claim petition was filed on 21st April 1981 and the award

was made on 19th May 1993. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. The appellants have assailed the said award on quantum of

compensation. Counsel for the appellants contended that the

tribunal erred in assessing the income of the deceased at Rs.

1,500 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. The counsel

submitted that the tribunal has erroneously applied the multiplier

of 5 while computing compensation, while according to the facts

and circumstances of the case multiplier of 8 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. It was also alleged 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 learned Tribunal erred

in not awarding any interest in the present case. He claimed that

a simple interest @15% per annum should have been awarded.

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.

6. Nobody has been appearing for the respondents.

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

perused the record.

8. As per the award, the appellants claimants had examined

PW4 Smt. Bharpai Devi wife of the deceased, PW5 Sh. Vijay Singh

and PW6 Shri Abhey Ram, who were from the same village as the

deceased and the claimants. All the three witness deposed that

the deceased was an agriculturist and used to earn about Rs.

5,000-6,000/- pm. Except the bald statements of the said three

witnesses no cogent material was placed on record to prove the

said income of the deceased. No doubt in unorganised sector like

agriculture it is difficult to prove the income with the help of

documentary evidence, yet how much land was owned by the

deceased, how many workers were engaged by him, quality of

procurement of seeds etc. Could have helped the Tribunal to

properly assess the income of the deceased. After considering all

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

not assessing the income of the deceased at Rs. 5,000/- pm., as

claimed by the appellants.

9. 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.

10. 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.

11. But no interference is made in the award on this count

since the issue of income is not disputed by the respondents and

also if at this stage the income is assessed according to the

Minimum Wages Act then the compensation will further dwindle

down. Thus, in the interest of justice no interference is made in

the award in this regard.

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

is no sufficient material to award future prospects. Therefore, the

tribunal committed no error in not granting future prospects in

the facts and circumstances of the case.

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

that the 1/3 deduction made by the tribunal is on the higher side

as the deceased is survived by his six children and a widow wife.

On perusal of the award it becomes manifest that at the time of

the death only two children of the deceased were unmarried.

Thus, I am not inclined to interfere with the award on this ground.

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

that the tribunal has erred in applying the multiplier of 5 in the

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

committed no error. This case pertains to the Motor Vehicles Act,

1939. This case pertains to the year 1981 and at that time II

schedule to the Motor Vehicles Act was not brought on the

statute books. 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 at the time of the

accident was of 65 years of age and his widow wife was of 63

years of age. The eldest child of the deceased was of 42 years of

age and the youngest child was of 15 years of age at the time of

the accident. In any event even as per the schedule of Motor

Vehicle Act the applicable multiplier is 5 years. 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 5 should have been

applied. Therefore, the tribunal committed no error and in the

facts of the instant case the multiplier of 5 shall be applicable.

15. As regards the issue of interest that no rate of interest has

been awarded by the tribunal and the same should be awarded @

15% p.a., I feel that the tribunal erred in not awarding any rate of

interest, therefore, the award is unjust and unfair and requires

interference. Although, no rate of interest is fixed under Section

171 of the Motor Vehicles Act, 1988 but it is mandatory for the

tribunal to award interest. 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 find infirmity in the award regarding

no award of interest and the same is awarded @ 7% pa.

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

not granting adequate compensation towards non pecuniary

damages, I feel that the same should have been awarded. In this

regard compensation towards loss of love and affection is

awarded at Rs. 60,000/-; compensation towards funeral expenses

is awarded at Rs. 5,000/- and compensation towards loss of

estate is awarded at Rs. 10,000/-. Further, Rs. 25,000/- is

awarded towards loss of consortium.

17. 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.

18. On the basis of the discussion, the total loss of dependency

comes to Rs. 60,000/-. After considering Rs. 1,00,000/-, which is

granted towards non-pecuniary damages, the total compensation

comes out as Rs. 1,60,000/-.

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

enhanced to Rs. 1,60,000/- from Rs. 60,000/- with interest @ 7%

per annum 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. The enhanced compensation be

apportioned amongst the appellants in the same ratio as

apportioned by the Tribunal.

20. With these observations the appeal stands disposed of.

6.4. 2009                       KAILASH GAMBHIR, J.