Smt.Kamla & Ors. vs Sh Vishwanath & Ors
2009 Latest Caselaw 1327 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       FAO No. 293 of 2002

                   Judgment reserved on 7.1.2008
%                  Judgment delivered on: 13.4.2009


Smt. Kamla & Ors.                           ...... Appellants
                        Through: Mr. O.P. Mannie, Adv.

                   versus


Sh. Vishwanath & Ors.                        ..... Respondent
                    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 16/2/2000

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 3,13,872/- along with interest @ 9% per

annum to the claimants.

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

3. On 29/5/1996 at about 9:00 a.m., the deceased Sh. Ramji

Lal was in the process of boarding a D.T.C. bus at Britannia stand,

Britannia Chowk, when another bus bearing registration no. DL 1P

1784, being driven in a rash and negligent manner hit Sh. Ramji

Lal while trying to overtake the DTC bus from the wrong side and

dragged him. From the accident site he was rushed to ESI

Hospital, where he was declared dead.

4. A claim petition was filed on 24/9/1996 and an award was

made on 16/2/2000. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. O.P. Mannie, counsel for the appellants assailed the said

award on quantum of damages. Counsel for the appellants

contended that the tribunal has erred in assessing the income of

the deceased at Rs. 2515/- 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. 4,000/- per month.

The counsel submitted that the tribunal has erroneously applied

the multiplier of 13 while computing compensation when

according to the facts and circumstances of the case multiplier of

16 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 40 yrs of age only and would have lived for another 20-25 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 18% @ per annum in

place of only 9% 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.

6. The counsel has relied on following judgments in support of

his contentions:

(1) Mohinder Kaur & ors. Vs. Hira Nand sindhi (Ghoriwala) &

Ors. - 2007 ACJ 2123 (SC);

(2) Lekh Raj & Anr. Vs. Suram Singh & Ors. - 2007 ACJ 2165

(Del);

(3) An unreported judgment of Delhi High Court in United

India Insurance Co. Ltd. Vs. Surjeet Kaur in MAC APP No.

40/2004 decided on 25/1/2007;

(4) 2007 VI AD 730 (Delhi); and

(5) United India Insurance Co. Ltd. Vs. Sulochana & Ors.-III

(2007) ACC 50 (Mad) (DB).

7. Nobody has been appearing for the respondents.

8. I have heard learned counsel for the appellants and perused

the record.

9. The appellants claimants had not brought on record any

cogent evidence to substantiate that the deceased was earning

Rs. 4000/- pm while working in a sewing factory. The Appellant

no. 2 has merely asserted in his deposition that his father was

earning Rs. 4000/- pm while working in a sewing factory, but

nothing has been brought on record to prove the same.

10. 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.

11. The thumb rule is that in the absence of any 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.

12. Therefore, the tribunal has not erred in taking the income

of the deceased as per the minimum wages notified for a skilled

workman as on the date of the accident, i.e.29/5/1996 i.e. 1677/-

p.m.

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

is no material on record to award future prospects.

14. However, 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. The deceased was of 40 years of age at the time

of the accident and thus, it could safely be assumed that income

of the deceased would have doubled in the next 10 years. Future

increase in income is not akin to future prospects, though the

method followed for the computation of income while awarding

future prospects and increase in the minimum wages are the

same, therefore, the computation is not affected.

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

that the tribunal has erred in applying the multiplier of 13 in the

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

committed error. This case pertains to the year 1996 and at that

time II schedule to the Motor Vehicles Act had been 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 age of the deceased at the time of

the accident was 40 years and that of his wife was also about 40

years, his mother was aged 85 years and his children were aged

20 years, 10 years, 15 years and 6 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 16 should have

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

multiplier of 16 shall be applicable.

16. 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 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

circumstances of the case, I do not find any infirmity in the award

regarding award of interest @ 9% pa by the tribunal and the

same is not interfered with.

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

not awarding compensation towards loss of love & affection,

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

of services, which were being rendered by the deceased to the

appellants, I am of the view 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.

50,000/- is awarded towards loss of consortium.

18. 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.

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

would come to Rs. 2515.50 after doubling Rs. 1677 to Rs. 3354

and after taking the mean of them. After making 1/5 th deductions

the monthly loss of dependency comes to Rs. 2012.40 and the

annual loss of dependency comes to Rs. 24,149 per annum and

after applying multiplier of 16 it comes to Rs. 3,86,384/-. Thus,

the total loss of dependency comes to Rs. 3,86,384/-. After

considering Rs. 1,25,000/-, which is granted towards non-

pecuniary damages, the total compensation comes out as Rs.

5,11,384/-.

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

enhanced to Rs. 5,11,384/- from Rs. 3,13,872/- with interest @

7.5% per annum from the date of filing of the claim petition till

realisation and the same should be paid to the appellants by the

respondent insurance company. The enhanced compensation be

apportioned amongst the respondents in the same ratio as

awarded by the Tribunal.

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

13.4.2009                              KAILASH GAMBHIR, J.