Raj Kumari & Ors. vs Sh Satnam Singh & Ors.
2009 Latest Caselaw 1324 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO No. 615/2002

                       Judgment reserved on: 21st Feb., 2008
%                      Judgment delivered on: 13.4.2009



      Raj Kumari & Ors.               ...... Appellant
                     Through: Mr. O. P. Mainee, Advocate.

                       versus

      Shri Satnam Singh & Ors.          ..... Respondents
                     Through: Mr. Pankaj Seth, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may          No
      be allowed to see the judgment?

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 18.8.93 of

the Motor Accident Claims Tribunal whereby the Tribunal awarded

a sum of Rs. 25,000/- along with interest @ 9% per annum to the

claimants.

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

That the deceased was crossing the road when a tempo

bearing registration no. DL-1L-7493 driven by respondent no.1 in a

rash and negligent manner struck against the deceased who fell

down and received fatal injuries and when the injured was taken

to hospital, he was declared as brought dead.

3. A claim petition was filed on 27.8.95 and an award was

passed on 3.8.2002. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

4. Shri O.P.Mannie counsel for the appellants while assailing

the said award contended that the tribunal awarded only

Rs.25,000/- to the claimants as no fault liability compensation and

dismissed the petition on the ground that the appellants could not

prove the negligence of the tempo driver. The counsel submitted

that the appellants had brought on record ample evidence to prove

negligence of respondent no.1. The counsel urged that the

tribunal ought to have awarded Rs.4,95,000/- compensation

towards loss of dependency by taking income of the deceased at

Rs.5,000/- making deductions of ¼ towards personal expenses of

the deceased and by applying multiplier of 11. The counsel also

urged that the tribunal also erred in not awarding non-pecuniary

damages and claimed Rs.1,75,000/- under the said head of

damages.

5. Per contra, Mr. Pankaj Seth, counsel appearing for the

respondent insurance company submitted 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.

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

the record.

7. PW-1 widow of the deceased deposed that the deceased was

working at shoe store at Pitampura and used to earn Rs.3000/-

p.m. The tribunal erred in holding that the appellants could not

prove the negligence on the part of the respondent no.1. It has

come on record that the driver of the tempo was challaned by the

police under Section 279/304-A IPC vide FIR No. 253/93, P.S. Sarai

Rohilla, which is Ex. PC. Furthermore, PW-2 Anil Kumar who an

eye witness and was not known to the appellants stated that the

tempo bearing registration no. DL 1L 7943 which was being driven

by respondent no.1 caused the accident. Further charge sheet Ex.

PA and copy of seizure memo, Ex. PD clearly prove the

involvements of the tempo in the accident which led to death of the

deceased. As regards the negligence, the site plan, Ex.PB

statement of PB coupled with principle of res ipsa loqitor point at

the negligence of the tempo driver. It was held by the Apex Court

in N.K. V. Bros. (P) Ltd., Vs. M. Karumai Ammal-1980 ACJ

435 (SC) that the degree of culpable rashness required to be

proved under criminal law is more drastic then the degree of

negligence required to be proved under the law of torts to create

liability. In the instant case the aforesaid documents are sufficient

to prove the negligence on the part of the driver supported by the

deposition of eye witness PW-2. Therefore, the tribunal erred in

holding that the negligence of respondent no.1 was not proved.

8. The appellants claimants did not bring on record any

document to prove income of the deceased.

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 at the time of the

accident on the basis of the minimum wages notified under the

Minimum Wages Act.

11. Therefore, income of the deceased as on 18.8.93 as notified

under the M.V. Act for a skilled workman shall be Rs. 1369/-.

12. As regards the 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.

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

the ¼ deduction should be made as the deceased is survived by his

wife and three children. In catena of cases the Apex Court has in

similar circumstances made 1/3rd deductions. Therefore,

deductions to the tune of 1/3rd expenses towards personal expenses

is made.

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

multiplier of 11 is applicable in the facts and circumstances of the

case. This case pertains to the year 1993 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 55 years of

age and is survived by his widow and three children. In the facts of

the present case I am of the view that after looking at the age of

the claimants and the deceased and after taking a balanced view

considering applicable multiplier under the II Schedule to the M.V.

Act, the multiplier of 11 can be applied. Therefore, in the facts of

the instant case the multiplier of 11 shall be applicable.

15. 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. 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 fir

depending upon the facts and circumstances of the case and taking

into consideration relevant factors including inflation, change of

economy, 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% p.a by the tribunal and the same is not

interfered with.

16. On the contention regarding that the tribunal has erred in not

granting compensation towards loss of love and affection, funeral

expenses, loss of estate, loss of consortium 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.30,000/- compensation towards funeral

expenses is awarded at Rs. 10,000/- and compensation towards

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

awarded towards loss of consortium.

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

deceased would come to Rs. 2053.50 after doubling Rs. 1369/- to

Rs. 2738/- and after taking the mean of them. After making 1/3 rd

deductions the monthly loss of dependency comes to Rs. 1369/-

and the annual loss of dependency comes to Rs. 16,428/- per

annum and after applying multiplier of 11 it comes to Rs.

1,80,708/-. Thus the total loss of dependency comes to Rs.

1,80,708/-. After considering Rs. 1,00,000/- which is granted

towards non-pecuniary damages, the total compensation comes out

as Rs.2,80,708/-.

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

enhanced to Rs. 2,80,708/- from Rs.25,000/- with interest @ 7.5%

per annum from the date of filing of the petition till realization and

the same should be paid to the appellants by the respondent no.3.

Out of the enhanced compensation 50% be paid to the widow of the

deceased and remaining be distributed equally amongst the

remaining appellants.

19. With these directions, the present appeal stands disposed of.

13.4.2009                                 KAILASH GAMBHIR, J