Mrs. Sughanthy Moses vs Jose Perez Novos
2009 Latest Caselaw 1192 Del

      * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO No. 58/91

                       Judgment reserved on: 02.04.2008
%                       Judgment delivered on: 06.04.2009


     MRS.SUGHANTHY MOSES                ...... Appellants
                  Through: Mr. R.D. Shahlia, Advocate

            versus

      JOSE PEREZ NOVOS                   ..... Respondent
                    Through: Mr. Kanwal Chaudhary, Advocate

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 of compensation passed

by the Learned Motor Accident Claim Tribunal on 16.1.91 for enhancement

of compensation. The learned Tribunal awarded a total amount of

Rs.4,50,000/- with an interest @ 12% PA to the appellants.

2. The brief conspectus of facts is as under:

3. On 1.1.86 the deceased Mr. R. Moses while travelling with his family

FAO No. 58/91 Pages 1 of 7 members in car bearing registration no. DLY 1522 near A.I.I.M.S was hit by

car bearing registration no. 19 CD 1A which was driven at a fast speed and

in a rash and negligent manner. As a result he suffered fatal injuries and

later died. Petitioner/claimant no.1 who is wife of the deceased also

sustained grievous injuries in the said accident.

4. A claim petition was filed on 28.2.86 and an award was made on

16.1.91. Aggrieved with the said award enhancement is claimed by way of

the present appeal.

5. Appellant claimant claims enhancement through this appeal. Sh.R.D

Sahalia counsel for the appellants assailed the said award on the ground

that the Ld.Tribunal erred in not awarding any amount towards loss of

Estate , funeral expenses, mental shock suffered by the appellants and loss

of happy life. The Ld.Tribunal also erred in not awarding adequately

pecuniary and non pecuniary damages, urged counsel for the appellants.

The counsel maintained that the Ld Tribunal has not awarded just

compensation as the three minor daughters were wholly dependant upon

the income of the deceased. The counsel submitted that the Ld. Tribunal,

has taken the dependency at Rs.2500/- whereas the income of the

deceased was about Rs.5000/- p.m. The counsel averred that the

Ld.Tribunal erred in allowing the interest @10% p.a. only instead of

FAO No. 58/91 Pages 2 of 7 awarding it @18% pa. The counsel submitted that the tribunal has

erroneously applied the multiplier of 15 while computing compensation.

The counsel also submitted that had the deceased not met with his

untimely death he would have expanded his business and would have been

earning much more in the 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.

6. Per Contra Mr.Kanwal Chaudhary, counsel appearing for respondent

insurance company submits that there is no illegality in the impugned

award. Counsel further contended that award passed by the Tribunal is

absolutely fair, just and reasonable and no fault can be found with the

same.

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

8. Mrs. Moses, widow of the deceased deposed as PW4 that her husband

was Director of Yamuna Sea Foods Ltd. and was earning Rs. 6,000/- pm. PW

2 vide Ex. PW2/A proved that the deceased was a Director of Yamuna Sea

FAO No. 58/91 Pages 3 of 7 Foods Ltd. Ex. PW2/B is the extract of the salary register according to

which, income of the deceased is stated to be Rs.3500/- p.m + Rs.500

H.R.A + Rs.800/- as Conveyance. Based on the above material duly placed

on the record, I am of the veiw that Tribunal has correctly appreciated the

same and, therefore, I am of the view that the tribunal has committed no

error in assessing the loss of dependency at Rs.2500/-p.m. after making

1/3rd deductions towards personal expenses. Therefore no interference is

made in the award in this regard.

9. As regards the future prospects, I am of the view that there is no

material on record to award future prospects. It is no more res integra that

mere bald assertions regarding the future prospects of the deceased are of

no help to the claimants in the absence of any reliable evidence being

brought on record. Therefore, the tribunal committed no error in not

granting future prospects in the facts and circumstances of the case.

Therefore, no interference is made in the award on this count by this court.

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

tribunal erred in applying the multiplier of 15 in the facts and circumstances

of the case, I feel that the tribunal committed no error. This case pertains to

the year 1986 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

FAO No. 58/91 Pages 4 of 7 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

aged about 46 years at the time of the accident and is survived by his

widow and three daughters. 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 has been correctly applied. Therefore, in the facts of

the instant case no interference is made on this count.

11. As regards the issue of interest that the rate of interest of 10% 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, policy being adopted by Reserve Bank

of India from time to time and other economic factors. In the facts and

FAO No. 58/91 Pages 5 of 7 circumstances of the case, I do not find any infirmity in the award regarding

award of interest @ 10% pa by the tribunal and the same is not interfered

with.

12. On the contention regarding that the tribunal has erred in not granting

any compensation towards loss of Estate , funeral expenses, mental shock

suffered by the appellant and loss of happy life whereas. The deceased had

left behind his wife and three daughters at the time of accident.

Considering this compensation towards loss of love and affection/loss of

happy life is granted at Rs.30,000/-; compensation towards funeral

expenses is granted to Rs.10,000/- and compensation towards loss of

estate is granted to Rs. 10,000/-. Further, Rs.50,000/- is awarded towards

loss of consortium.

13. 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 are not

conventional heads of damages.

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

come to Rs. 3,500/- and after making 1/3rd deductions the monthly loss of

dependency comes to Rs. 2,333.33/- which the Tribunal has rounded off to

FAO No. 58/91 Pages 6 of 7 Rs. 2500/- and the annual loss of dependency comes to Rs. 30,000/- per

annum and after applying multiplier of 15 it comes to Rs. 4,50,000/-. Thus,

the total loss of dependency comes to Rs. 4,50,000/-. After considering Rs.

1,00,000/-, which is granted towards non-pecuniary damages, the total

compensation comes out as Rs. 5,50,000/-.

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

to Rs.5,50,000/- from Rs.4,50,000/- with interest @ 7.5% per annum on the

enhanced compensation from the date of filing of the petition till realisation

and the same should be paid to the appellants in equal proportion by the

respondent no. 3.

16. With the above direction, the appeal is disposed of.

06.04.2009                            KAILASH GAMBHIR, J.




FAO No. 58/91                                                       Pages 7 of 7