Smt. Shanti Devi vs Sh. Bhagwan Dass & Ors.
2009 Latest Caselaw 1193 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.507/99


                     Judgment reserved on: 07.01.08

%                    Judgment delivered on: 6.4.2009


Smt. Shanti Devi                         ...... Appellant
                     Through: Mr. O.P. Goyal, Adv.

               versus


Sh. Bhagwan Dass & Ors.                ..... Respondent
                   Through: Mr. Yogesh Malhotra, 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           No
          in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 4 th August

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 56,280/- along with interest @ 10% per

annum to the claimants.

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

On 12th July 1991, at about 2:00 P.M. the deceased Sh.

Kuldip Kumar, aged about 22 years was going on two wheeler

scooter bearing registration No. DDP-190 from the direction of

Desh Bandu Gupta Road towards Pusa Road. At that time a milk

tanker bearing licence plate No. DL 1G 2933 came speeding

towards the deceased's scooter and hit him. Consequently, Sh.

Kuldip Singh fell down and received fatal injuries. He was

removed to Ram Manohar Lohia Hospital where he was declared

dead.

3. A claim petition was filed on 10th October 1991 and an

award was passed on 4th August 1999. Aggrieved with the said

award enhancement is claimed by way of the present appeal.

4. Sh. O.P. Goyal, counsel for the appellants assailed the said

award on five grounds. Counsel for the appellants contended that

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

1000/- 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. 5000/- per month. The tribunal

erred in not considering the testimony of the PW2, Sh. Sohan Lal,

who stated that the deceased was running a paan shop and was

also selling juice in Raghbir Nagar, J.J. Colony and was having one

servant also. The counsel further maintained that the tribunal

erred in making the deduction to the extent of 1/3rd of the income

of the deceased towards personal expenses when the deceased

was supporting a large family at the time of accident and is

survived by his mother and four brothers and sisters who were

entirely dependent on the deceased as he was the sole bread

earner of the family, thus the said deduction should be 1/4 th

towards personal expenses. The counsel further submitted that

the tribunal erroneously applied the multiplier of 10 while

computing compensation, while according to the facts and

circumstances of the case multiplier of 18, the maximum, as per

the IInd schedule 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 21 yrs of age only. The counsel also stated 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. 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 @ 18% per annum in

place of only 10% 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. The Respondent No. 4, the insurance Company refuted the

aforesaid stated contentions of the Learned counsel for the

appellant and submitted that the award is just, fair and

reasonable in its entirety. Nobody, however appeared for

Respondent Nos. 1 to 3.

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

perused the record.

7. The appellants claimants had brought on record the

statement of the mother of the deceased, who deposed about his

income stating that he was earning Rs. 2,500/- to 3,000/- and

used to give her Rs 100/- daily for household purposes and higher

amount on special occasions like family functions or marriage

etc. Secondly, The appellants also brought on record the witness,

PW2, Sh. Sunder Lal, who deposed that the deceased had kept a

servant, Monto whom he used to pay Rs.500/- P.M. The said

witness PW2 also deposed that the deceased was running a paan

shop and was also selling juice in Raghbir Nagar, J.J. Colony. He

stated in his cross examination that the deceased was a BA II

year student in Rajdhani College and used to sit at the aforesaid

shop, which was in the name of his mother, after lunch. However,

there is no cogent evidence proving the actual income of the

deceased except for few bald statements by the relatives of the

deceased. On perusal of the record, it is manifest that the

deceased was studying in BA (Hons.), II year from Delhi

University. The appellants have placed on record the educational

certificates of the deceased. After considering all these factors I

am of the view that the tribunal erred in assessing the income of

the deceased at Rs. 1000/-. The income of the deceased should

have been assessed as that of a matriculate as on 12 th July 1991,

i.e., the date of the accident and the same was Rs. 1118/- per

month as per the minimum wages notified under Minimum

Wages Act.

8. 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.

9. 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.

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. However, 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. Thus, it could safely be assumed that income of the

deceased would have doubled in the next 10 years.

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.

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

that the 1/3rd deduction made by the tribunal are on the higher

side as the deceased is survived by his mother and four brothers

and sisters who where entirely dependent on the deceased as he

was the sole bread earner of the family. In catena of cases the

Apex Court has in similar circumstances made 1/3rd deductions.

Therefore, I am not inclined to interfere with the award on this

ground.

13. 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 1991 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 into force of the II

schedule has risen to 18. The age of the deceased was 22 years

at the time of the accident, his mother was aged 43 years,

brother, Pradeep was of 13 years of age, sister Usha was of 26

years of age and is mentally unsound and unmarried and

youngest brother was of 11-12 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, considering applicable multiplier MV

Act & taking a balanced view, the multiplier of 13 shall be more

appropriate.

14. 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 not/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 @ 10% pa by the tribunal and the

same is not interfered with.

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

awarding non-pecuniary compensation to the appellants, i am of

the view that the same should have been awarded by the

tribunal. In this regard compensation towards loss of love and

affection is awarded at Rs. 50,000/-; compensation towards

funeral expenses is awarded at Rs. 5,000/- and compensation

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

16. As far as the contention of claiming award 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 are not conventional heads of

damages.

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

would come to Rs. 1677 after doubling Rs. 1118 to Rs. 2236 and

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

monthly loss of dependency comes to Rs. 1118 and the annual

loss of dependency comes to Rs. 13416 per annum and after

applying multiplier of 13 it comes to Rs. 1,74,408/-. Thus, the

total loss of dependency comes to Rs. 1,74,408/-. After

considering Rs. 65,000/-, which is awarded towards non-

pecuniary damages, the total compensation comes out as Rs.

2,39,408/-.

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

enhanced to Rs. 2,39,408/- from Rs. 56,280/- with interest @

7.5% per annum on the enhanced compensation from the date

of filing of the present petition till final realisation and the same

should be paid to the appellant by the respondent insurance

company. The enhanced compensation be apportioned amongst

the appellants in the same ratio as done by the tribunal.

19. With the above direction, the present appeal is disposed of.

6.4. 2009                               KAILASH GAMBHIR, J.