Smt. Ishwari Kumari & Ors vs Shri. Gurdeep Singh & Ors.
2009 Latest Caselaw 1191 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         FAO No. 47/2001

                        Judgment reserved on: 13.03.2008

                        Judgment delivered on: 06.04.2009


Smt. Ishwari Kumari & Ors.              ..... Appellant.
                    Through: Mr. Y.R. Sharma, Adv.

                        versus

Shri Gurdeep Singh & Ors.          ..... Respondents

Through: Mr.Salil Paul, 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

17.10.2000 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs.90,000/- along with interest @

12% per annum to the claimants.

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

3. On 25.5.87 at about 9 A.M., while deceased Shri

Satyendera Pal Singh was boarding the bus & had only put foot

in the mini bus, bearing registration No. DBP 741, from Bapu

Dham Bus Stop, Sardar Patel Marg, New Delhi, all of a sudden

the driver sped up the bus & due to sudden application of

brakes, the deceased fell down & suffered fatal injuries.

4. A claim petition was filed on 21.11.1987 and an

award was made on 17.10.2000. 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.3,500/- per month whereas after looking

into the facts and circumstances of the case the tribunal should

have assessed the income of the deceased at Rs.7,500/- per

month. The counsel submitted that the tribunal erroneously

applied the multiplier of 5 while computing compensation when

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 28yrs of age only and would have lived for another 50

yrs had he not met with the accident. 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

rate of interest allowed by the tribunal is on the lower side and

the tribunal should have allowed simple interest @ 15 % per

annum in place of 12% per annum. The counsel also contended

that the Tribunal erred in awarding interest only for 5 years.

The counsel contended that the tribunal has erred in not

awarding compensation towards loss of love & affection, funeral

expenses, loss of estate and loss of consortium. The counsel

also contended that the liability of the insurance company is

unlimited & not merely to the extent of Rs. 15,000/- as held by

the learned Tribunal. The counsel submitted that the Tribunal

erroneously considered the deceased as the passenger in the

bus whereas, he was walking on foot when the said offending

vehicle hit him & the same is supported by the testimony of PW-

6. Per contra Mr. Salil Paul counsel for the respondent

stated that the appellants are not entitled to any further

amount of compensation over and above the amount already

granted by the Tribunal. The counsel also contended that for

claiming any increase in the future, cogent and sufficient

grounds/reasons are required to be proved by the claimants

and in the absence of the same, future increase cannot be

taken into account for determining loss of financial dependence.

The counsel also contended that the liability of the insurance

company is limited to Rs. 15,000/- as the deceased was a

passenger in the bus and the same is supported by the

testimony of RW-1, PW-3 and PW-4. Counsel for the respondent

thus submitted that this Court may not interfere in the

compensation amount awarded by the Tribunal, which can not

be considered as unjust or unfair.

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

perused the record.

8. As regards the issue of limited liability of the insurance

Company, I feel that the contention of counsel for the

appellants has no merits. The Tribunal observed in para 3 of

the award that the claimants amended the petition to amend

the facts of the case by pleading that the deceased was hit by

the offending mini bus while walking on the road instead of

their earlier version that he fell out of the bus & died. The

reason for amendment was stated to be the testimony of PW-5,

Sh. Ganesh Kumar, who appeared as a public witness &

deposed that the deceased was hit from behind by the

offending vehicle. But PW-3 Sh. Raj Kumar, Conductor of the

offending vehicle & PW-4 Sh. Ram Bhure Singh, Head Constable

deposed that the deceased fell down from the bus due to

sudden application of brakes by the driver. I agree with the

observations of the Tribunal that clearly, the amendment is

made with the purpose of bringing the deceased in the category

of "third party" so that the liability of the insurance company

could be extended to unlimited liability. Also, as per the

testimony of RW-1, Sh. Ashok Kumar Johri, Sr. Asstt. New India

Assurance Co. Ltd. & on perusal of the policy, Ex. PW-1/4, it is

manifest that the maximum liability cover for passenger is Rs.

15,000/- and for the third party, the liability is unlimited.

Further, on perusal of the testimony of PW-1, Sh. R.P. Sarswat,

Medical Officer & post mortem report, Ex. PW-1/1, it is manifest

that the deceased died due to fall on the hard surface, further

there is no mention of the deceased being hit by a bus. In view

of the above discussion, clearly the liability of the Insurance

Company is limited to Rs. 15,000/-. Thus, no interference is

made in the award on this count.

9. As regards the income of the deceased Shri

Prithvipal Singh, the brother of the deceased deposed that the

deceased could not join duties in Kenya, else he would have

been earning Rs.7,200/- p.m. He further deposed that prior to

joining job in Kenya, the deceased was working in Prakarti Food

and was drawing salary of Rs.3,500/- p.m. On perusal of the

records it is manifest that the deceased was a Chemical

Engineer in Food Technology and received his degree of

Bachelor of Technology from Kanpur University. Perusal of the

record further reveals that nothing has come on record to

prove that the deceased was working with Prakarti Food and

was drawing Rs. 3,500/- p.m. at the time of the accident.

Although, it came on record that the deceased was offered

employment by Kabausora Limited in Kenya and he was an

employee of the same but he did not join the same as he could

not fly to Kenya and instead met with the accident. On perusal

of the communications of the Kabausora Limited with the

deceased, it becomes manifest that the deceased had

accepted the employment of the said Kenya based company.

Thus, the natural conclusion which is drawn out of this is that

the deceased was an employee of Kenya based company on the

date of the accident. Therefore, the tribunal erred in assessing

the income of the deceased at Rs. 3,500/- p.m. instead of

Rs.7,200/- p.m. the award is modified in this regard.

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 of the counsel for the

appellant that the tribunal erred in applying the multiplier of 5

in the facts and circumstances of the case, I feel that the

tribunal has committed error. This case pertains to the year

1987 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 had left behind his mother aged 65 years, his 2

unmarried sisters and an unmarried brother. The deceased was

28 years of age at the time of the accident. 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 10 should

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

the multiplier of 10 shall be applicable.

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 to 15% p.a., I feel that

the rate of interest awarded by the tribunal is just and fair and

requires no interference. Furthermore, the Tribunal did not

award interest from the date of filing of the petition till final

realization for the reason that the petition was filed in 1988 &

till 1994 no steps were taken to summon witnesses & it was

towards the end of 1998 that the witnesses were examined. In

this regard, I feel that the Tribunal committed no error. The

claimants cannot claim benefit when they themselves were

negligent in not serving the witnesses till 28.10.1994. 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. The award was passed

in the year 2000 and the tribunal has awarded interest @ 12%

p.a. In the facts and circumstances of the case, I do not find any

infirmity in the award regarding award of interest @ 12% p.a by

the tribunal and the same is not interfered with. Thus, the

award is not interfered with in this regard.

13. On the contention regarding that the tribunal has

erred in not granting compensation towards loss of love &

affection, funeral expenses and loss of estate and the loss of

services which were being rendered by the deceased to the

appellants. In this regard compensation towards loss of love

and affection is awarded at Rs.40,000/-, Rs. 10,000/- is

awarded towards funeral expenses and compensation towards

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

14. 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.

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

deceased would come to Rs. 7,200/- and after making 1/3

deductions the monthly loss of dependency comes to Rs.48,00/-

and the annual loss of dependency comes to Rs.57,600/- per

annum and after applying multiplier of 10 it comes to Rs.

5,76,000/-. Thus, the total loss of dependency comes to

Rs.5,76,000/-. After considering Rs.60,000/-, which is granted

towards loss of love & affection, funeral expenses and loss of

estate. the total compensation comes out as Rs.6,36,000/-.

16. In view of the above discussion, the total

compensation is enhanced to Rs. 6,36,000/- from Rs. 90,000/-.

The differential amount should be paid to the appellants by the

respondent Nos. 1 & 2 with interest @7.5% p.a. on the

enhanced compensation from the date of filing of present

petition till realisation. Out of the enhanced compensation 53%

be paid to the mother of the deceased and 15% each be given

to two sisters and one brother.

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

06.04.2009                            KAILASH GAMBHIR J.