Smt.Kanta Saxena & Ors. vs Sube Singh & Ors.
2009 Latest Caselaw 1333 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                   FAO No. 254/2003
                           Reserved on     29.02.2009
                           Judgment delivered on:13.4.2009

Smt. Kanta Saxena & Ors.                 ..... Appellants.
                   Through: Mr. Y R Sharma, Adv.



                       versus

Sube Singh & Ors.        ..... Respondents
                       Through: Shri P K Seth, 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 dated

8.1.2003 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 1,49,000/- along with interest @

6% per annum to the claimants.

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

On 21.11.1995 at about 4.00 PM, Shri Sunil Kumar

Saxena was boarding the bus bearing registration No: DL 1P 7409

at a local bus stand of ISBT, Delhi and at that time, respondent

No: 1 all of a sudden drove the bus with a great jerk and as a

result of rash and negligent driving of the bus by respondent No:

1, deceased fell down and received fatal injuries.

A claim petition was filed on 18.3.1996 and an award

was passed on 8.1.2003. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

3. Sh. Y R Sharma, counsel for the appellants contended

that the tribunal erred in assessing the income of the deceased at

Rs. 1500/- 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. 1545/- per month. 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 when the deceased was supporting a

large family at the time of accident and is survived by his wife,

daughter and mother. The counsel submitted that the tribunal

erroneously applied the multiplier of 11 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 48 yrs of age only and would have lived

for another 20-30 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 a 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 @ 6% per annum in place of only 9% per annum. The

counsel contended that the tribunal 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. The counsel has relied on following judgment in

support of his contentions:

1. 1996 ACJ 561 SC Sarla Dixit & Anr Vs. Balwant Yadav and Ors.

4. Shri P K Seth, Advocate appeared on behalf of

respondent Insurance Company. He submitted that the award

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

interference by this court.

5. I have heard learned counsel for the parties and

perused the record.

6. Appellant No: 1 examined herself as PW-1 and

deposed that her husband was a fruit vendor and was earning Rs.

5,000/- per month. She further testified that her deceased

husband used to give his entire earnings to her for running the

household expenses.

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. The appellants claimants had not produced any

documentary evidence to prove the income of the deceased

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. 1500/- in accordance with the minimum wages notified under

M.V. Act.

10 . Therefore, no interference is made in relation to

income of the deceased by this court.

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

no sufficient material exist on record to award future prospects.

12 . 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.

13 . As regards the contention of the counsel for the

appellant that the 1/3rd deduction made by the tribunal is on the

higher side as the deceased is survived by his wife and two

children. In catena of cases the Apex Court has in similar

circumstances allowed 1/3rd deductions. Therefore, I am not

inclined to interfere with the award on this ground.

14 . As regards the contention of the counsel for the

appellant that the tribunal erred in applying the multiplier of 11 in

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

has committed error. This case pertains to the year 1995 and the

IInd schedule came on the statute book in the year 1994 and the

same should have been taken as the guiding factor. At the time

of the accident the deceased was of 48 years of age and he is

survived by his widow and two 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 the multiplier of 12 as per IInd

Schedule of M.V. Act should have been applied. Therefore, in the

facts of the instant case the multiplier of 12 shall be applicable.

15 . As regards the issue of interest that the rate of

interest of 6% 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 @ 6% pa by the tribunal and the

same is not interfered with.

16 . On the contention regarding that the tribunal has

erred in not granting adequate compensation towards funeral

expenses and loss of estate, whereas, no compensation has been

granted towards loss of love and affection; 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. 20,000/-;

compensation towards funeral expenses is enhanced to Rs.

10,000/- and compensation towards loss of estate is enhanced to

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

consortium.

17 . 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 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.

18 . After taking double of Rs.1500/- i.e. Rs.3000/- & taking

their mean, the income of the deceased comes to Rs.2250/- after

making 1/3rd deduction, the loss of dependency comes to

Rs.1500/- and the annual loss of dependency comes to

Rs.18000/-. After applying multiplier of 12 the total

compensation comes to Rs.216000/-

19 . After considering Rs. 90,000/-, which is granted

towards non-pecuniary damages, the total compensation comes

out as Rs. 3,06,000/-.

20 . In view of the above discussion, the total

compensation is enhanced to Rs. 3,06,000/- from Rs. 1,49,000/-

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 by the respondent Insurance Company, in the same

ratio as awarded by the tribunal.

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

13.4.,2009                               KAILASH GAMBHIR,J.