Shaifali & Ors. vs Sh. Ashok Kumar & Ors.
2009 Latest Caselaw 1329 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                   FAO No. 324/1999
                           Judgment reserved on 07.01.2008
                           Judgment delivered on: 13.4.2009

Shaifali & Ors.                   ..... Appellants.
                         Through: Mr. O.P. Mannie Advocate

                         versus

Sh. Ashok Kumar & Ors.  ..... Respondents
                  Through: none.

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 20 th

February 1998 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs.97,500/- along with interest @ 12%

per annum to the claimants.

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

On the fateful day of 9th July 1988, the deceased Smt.

Shanti Devi was going on a scooter with her husband Sh. Subhash

Chander Talwar and son Master Gaurav Talwar, aged about 6

years mother. They were going from Azad Market to their

residence at Malviya Nagar. At about 2 P.M. at Tughlak Road, a

Haryana Roadways bus bearing registration No. HYU 6687 came

in a fast speed from the front, and in order to overtake rashly; the

bus came on the wrong side of the road and rammed the

passengers riding the scooter. Sh. Talwar, his wife and his son

sustained fatal injuries and they died on the same day in the

Hospital where they were taken from the accident site.

A claim petition was filed on 22nd October, 1988 and an

award was made on 20th February 1988. Aggrieved with the said

award enhancement is claimed by way of the present appeal.

3. Sh. O.P. Mannie counsel for the appellants assailed

the said award on quantum of damages. He submitted that the

deceased was supporting and assisting a large family at the time

of accident by her domestic services and also financially, by

taking tuition classes in the neighbour and was earning a salary

of Rs 800/- P.M. from that. Further, it is submitted that she was a

graduate from the Delhi University. The counsel stated that

income of the deceased from tuition should be taken into account

and further income of Rs. 3,000 should be computed as the

income on account of household services. To compute the loss of

dependency, according to the Counsel, a multiplier of 16 shall be

applied. It was urged by the counsel that the tribunal erred in not

considering future prospects and states that the court should

have applied the method provided under Sarla Dixit's Case.

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.

4. Nobody has been appearing for the respondents.

5. I have heard learned counsel for the appellants and

perused the record.

6. The appellants claimants had examined witnesses to

prove their case. According to PW5 & PW6 the deceased was 38

years of age and was also taking tuitions besides doing her

household chores and motherly duties. According to PW6, the

deceased was teaching her children and for that the deceased

was paid Rs. 300/- pm. The said witness also deposed that the

deceased was also giving tuitions to other children who were

paying her Rs. 200/- pm. After considering all these factors I am

of the view that nothing has been brought on record as regards

the educational qualification of the deceased and also, no proof

of income has been put forth with exactitude, therefore, the

income of the deceased should have been assessed with the aid

of Minimum Wages Act, but the tribunal has erred in assessing

the income of the deceased at Rs. 800/-, without there being any

evidence on record regarding the same.

7 . 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.

8. 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.

9. Although, the deceased was taking tuitions, but since,

nothing has been brought on record regarding the educational

qualification of the deceased, therefore, at the most, income of

the deceased could be assessed according to the minimum

wages prevalent for skilled workmen for the household chores

done by her which was Rs. 749/-pm.

10 . As regards the future prospects I am of the view that

there is no sufficient material on record to award future

prospects. However, this court is of the view that along with

taking the aid of the Minimum Wages Act, the increase in the

minimum wages should also be granted. Increase in minimum

wages is not akin to future prospects for the reason that inflation

eats into the purchasing power of the rupee and to neutralize the

falling power of the rupee, wages are increased. A perusal of the

minimum wages notified under the Minimum Wages Act show

that minimum wages virtually more than double after every 10

years. Therefore to compute the income of the deceased the

tribunal ought to have granted increase in minimum wages after

doubling the income and taking the mean of the same.

Therefore, the same shall also be considered herein.

11 . As regards the contention of the counsel for the

appellant that the tribunal has erred in applying the multiplier of

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

tribunal has committed error. This case pertains to the year 1988

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 age of

the deceased was 38 years at the time of the accident and the

claimants children were of 13 years and 9 years of age. 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 after considering the applicable multiplier under

the II Schedule to the M.V. Act, the multiplier of 15 should have

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

multiplier of 15 shall be applicable.

12 . On the contention regarding that the tribunal has

erred in not granting compensation towards loss of love &

affection, funeral expenses, 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. 20,000/-; compensation towards

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

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

13 . As regards the loss of services, which were being

rendered by the deceased to the appellants, the tribunal has

already awarded Rs. 37,500/- and I feel that the same does not

require any interference.

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

the deceased would come to Rs. 1123.50/- after doubling Rs.

749/- to Rs. 1498/- and after taking the mean of them. After

making 1/2 deductions the monthly loss of dependency comes to

Rs. 561.75/- and the annual loss of dependency comes to Rs.

6741/- per annum and after applying multiplier of 15 it comes to

Rs. 1,01,115/-. Thus, the total loss of dependency comes to Rs.

1,01,115/-. After considering Rs. 72,500/-, which is granted

towards non-pecuniary damages, the total compensation comes

out as Rs. 1,73,615/-.

15 . In view of the above discussion, the total

compensation is enhanced to Rs. 1,73,615/- from Rs. 97,500/-

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 in the equal

share.

16 . With the above direction, the present appeal is

disposed of.

13.4.2009                            KAILASH GAMBHIR.J.