Kamlesh Yadav vs Sh Rajbir Singh & Ors.
2009 Latest Caselaw 1332 Del

           * IN THE HIGH COURT OF DELHI AT NEW DELHI

      +                     FAO No. 354/99


%                     Judgment reserved on: 21.2.2008
                      Judgment delivered on: 13.4.2009


Kamlesh Yadav                                    ...... Appellant
                      Through: Mr. V.P. Chaudhary, Sr. Adv. with
                               Mr. Nitinjya Chaudhry, Adv.

                                 versus


Sh Rajbir Singh & Ors.                         ..... Respondents
                     Through: Mr. Pradeep Gaur, 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
   in the Digest?                                                   No


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 11th March

1999 for enhancement of compensation. The learned Tribunal awarded

a total amount of Rs. 6,00,000/- with an interest @ 12% PA for the

injuries caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. The deceased Sh. Mohinder Singh Yadav was employed as

Inspector with Central Industrial Security Force. On 21 st March 1993 at

about 8:15 P.M. the deceased was proceeding from Rohtak Road on his

two wheeler scooter bearing registration No. DL 4S G 6318, while

going to his village Madipur. On reaching near Shri Ram Food &

Fertilizers Factory, a bus bearing registration No. DL 1P 3016 came

from behind at a high speed driven in a rash and negligent manner.

Firstly the first right portion of the bus struck against the scooter from

behind due to which Sh. Yadav fell on the road and then the front right

wheel of the bus ran over the head of the deceased and he died on the

spot.

4. A claim petition was filed on 30th April 1993 and an award was

made on 11th March 1999. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. The appellants have assailed the said award on quantum of

compensation. Sh. V.P. Chaudhary, Sr. Advocate with Shri Nitinjya

Chaudhry, Advocate for the appellants contended that the tribunal

erred in assessing the income of the deceased at Rs. 4,500/- per month

and did not take the aspect of future increase of income into account.

The counsel further maintained that the tribunal erred in making the

deduction to the tune of 1/3rd of the income of the deceased towards

personal expenses while the deceased was supporting a large family at

the time of accident and is survived by his widow, mother and two

minor children. He urged that the said deduction should have been to

the tune of 1/4th. The counsel submitted that the tribunal has

erroneously applied the multiplier of 12 while computing

compensation, whereas, according to the facts and circumstances of

the case multiplier of 16 should have been applied. The learned

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 @ 15% per annum in place of 12% per annum. The

counsel contended that the tribunal erred in not awarding adequate

and just compensation towards non pecuniary damages like 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. From the side of the insurance company, advocate Shri Pradeep

Gaur appeared and refuted the submissions of the counsel for the

appellants and contended that the award passed by the MACT is just

and fair in its entirety and deserves no interference.

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

record.

8. As regards income of the deceased the appellant wife of the

deceased PW2 deposed that the deceased was working as Inspector

(Executive) with Central Industrial Security Force at New Delhi and was

drawing a salary of Rs. 4500/-pm. Sh. Suresh Chand PW5, S.I. from the

office of the deceased proved the copy of the last pay of the deceased

exhibited as PW5/1, according to which the salary of the deceased was

Rs. 4490/-pm. After considering all these factors, I am of the view that

the tribunal has not erred in assessing the income of the deceased at

Rs. 4500/-pm.

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

sufficient material on record to award future prospects. The tribunal

rightly considered the future prospects of the deceased but erred in

computing the same. The PW5 as well as PW2 both deposed that the

deceased was promoted to the rank of Inspector in 1989 and would

have soon become an Assistant Commandant. I feel that the tribunal

should have doubled the income and then taken the mean of the

same. Thus, the award is modified in this regard.

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

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

deceased is survived by his widow, two minor children and an aged

mother. I feel that the interest of justice will be best served if the

deduction to the extent of 1/4th is made. Therefore, I am inclined to

interfere with the award on this ground and modify the award by

deducting 1/4th towards personal expenses of the deceased.

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

the tribunal 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 1993 and by that time II schedule to the

Motor Vehicles Act was not yet introduced 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. At the time of the accident

the deceased was or 40 years of age and was survived by his widow

wife, two minor children and the widow mother. 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 the applicable multiplier under the II schedule to the MV

Act the multiplier of 16 should have been applied. Therefore, in the

facts of the instant case the multiplier of 16 shall be applicable.

12. As regards the issue of interest that the rate of interest of 12%

p.a. awarded by the tribunal is on the lower side and the same should

be enhanced to 15% 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 @12%

pa by the tribunal and the same is not interfered with.

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

granting compensation towards non-pecuniary damages, I feel that the

same should have been awarded. In this regard compensation towards

loss of love and affection is awarded at Rs. 30,000/-; 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.

14. As far as the contention pertaining to the award 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.

15. On the basis of the discussion, the income of the deceased would

come to Rs. 6750 after doubling Rs. 4500 to Rs. 9000 and after taking

the mean of them. After making 1/4th deductions the monthly loss of

dependency comes to Rs. 5062.50/- and the annual loss of dependency

comes to Rs. 60750 per annum and after applying multiplier of 16 it

comes to Rs. 972000/-. Thus, the total loss of dependency comes to Rs.

972000/-. After considering Rs. 95000/-, which is granted towards non-

pecuniary damages, the total compensation comes out as Rs.

10,67,000/-.

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

enhanced to Rs. 10,67,000/- from Rs. 6,00,000/- with interest @ 7.5%

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

same should be paid to the appellants, in the same proportion as

awarded by the tribunal, by the respondent/insurance company.

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

13th April, 2009                       KAILASH GAMBHIR, J