Smt.Kailash Kataria vs Shyam Sunder & Ors.
2009 Latest Caselaw 1331 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                   FAO No. 139/2002

                   Judgment reserved on: 25th Feb., 2008

                   Judgment delivered on: 13.4.2009

Smt. Kailash Kataria                     ..... Appellants.
                       Through: Mr. O P Goyal, Adv.



                       Versus

Shyam Sunder & Ors.                ..... Respondents

                       Through: Shri Sudhir Nandrajog, Adv
                                for respondents No: 3 to 6.

     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 1.12.2001

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 59,000/- along with interest @ 9% per

annum to the claimants.

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

3. On 1.6.1983 at about 3 PM, deceased Ved Prakash Kataria

along with his son-in-law Naresh Kumar and one Shyam Lal were

going in a three-wheeler scooter bearing registration No: DER

4490 from Fatehpuri towards ISBT and when the scooter was

going towards ISBT on Shyam Parshad Mukherjee Marg and

reached near Chatta Rail suddenly a mini bus bearing

registration no. DLP 4875 came which was being driven in a

rash and negligent manner from Kashmere Gate side and hit the

three wheeler scooter, with the front of the bus hitting the

scooter head on and as a result both the vehicles were damaged

and the deceased Ved Prakash sustained fatal injuries and died

on the spot.

4. A claim petition was filed on 2.8.1983 and an award was

made on 1.12.2001. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. O P Goyal, counsel for the appellants contended that

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

500/- 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. 8,000/- per month. The counsel

further maintained that the tribunal erred in making the

deduction to the tune of Rs. 92.50 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 widow,

five children and parents. The counsel submitted that the

tribunal erroneously applied the multiplier of 10 while computing

compensation when according to the facts and circumstances of

the case multiplier of 13 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 49 yrs of age only and would have lived

for another 20-30 yrs had he not met with the accident. It was

also submitted 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 her life span.

6. Shri S. NandraJog, Advocate appeared on behalf of

respondents Nos. 3 to 6. He submitted that the award passed by

the ld. Tribunal is just and fair and requires no interference by

this court.

7. I have heard the learned counsel for the appellants and

perused the record.

8. Appellant No. 1 deposed as PW-2 that her husband used to

give Rs. 10,000/- per month for household expenses and was

running transport business in the name and style of M/s. Okara

Transport, Chadha Transport and Milak Transport at Dabwali and

was also working as Commission Agent. It was also claimed that

the deceased was earning Rs. 50,000/- to Rs.60,000/- from the

agriculture land owned by him, but no documentary evidence

was placed or proved on record relating to prove the claimed

income of her husband.

.

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 on the basis of the

minimum wages notified under the Minimum Wages Act.

11. After considering all these factors I am of the view that the

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

500/-. The tribunal should have assessed the income of the

deceased at Rs.400/- p.m. as per the minimum wages notified for

a skilled workman as on the date of the accident.

12. Therefore, interference is made in relation to income of

the deceased by this court.

13. 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. For instance, minimum wages of skilled labourers

as on 1.1.1980 was Rs. 320/- per month and same rose to Rs.

1,083/- per month in the year 1990. Meaning thereby, from year

1980 to year 1990, there there has been an increase of nearly

238% in the minimum wages. Thus, it could safely be assumed

that income of the deceased would have doubled in the next 10

years.

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

that the tribunal 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 1983 and at that

time II schedule to the Motor Vehicles act was not brought on the

statute book. 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 was of 49 years of age at

the time of the accident and is survived by his widow, five

children and aged parents . 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 considering the applicable multiplier under the II

Schedule of the M.V. Act, the multiplier of 12 should have been

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

of 12 shall be applicable.

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

granting 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. In this regard compensation towards loss of love and

affection is awarded at Rs. 70,000/-; compensation towards

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

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

Rs.50,000/- towards loss of consortium.

16. 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 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 as the same are not

conventional heads of damages.

17. Taking double of Rs.400, viz., Rs.800/- and then taking their

mean, the income of the deceased would come to Rs.600 and

after applying unit method as applied by the tribunal and

making 1/8 deduction the monthly loss of dependency comes to

Rs.525/- p.m. or Rs. 6300 p.a. Applying multiplier of 12 the total

compensation comes to Rs. 75,600/-.

18. After considering Rs. 1,40,000/-, which is granted towards

non pecuniary damages the total compensation comes out as Rs.

2,15,600/-.

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

enhanced to Rs. 2,15,600/- from Rs. 59,000/- with interest @

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

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

respondent insurance company in the same proportion as

awarded by the tribunal.

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

13th April, 2009                            Kailash Gambhir,J.