Shanti Devi vs Shri Ashok Kumar
2009 Latest Caselaw 1336 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 317/99

                      Judgment reserved on: 7th January, 2008
%                     Judgment delivered on: 13.4.2009



Shanti Devi                      ...... Appellant
                      Through: Mr. O. P. Mainee, Advocate.

                 versus


Shri Ashok Kumar                   ..... 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. 5,75,206/- 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 Sh. S.C.

Talwar was going on his scooter with his wife Smt. Shanti Devi

and son Master Gaurav Talwar aged 6 years. 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, 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.

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

award was made on 20th February 1998. Aggrieved with the said

award enhancement is claimed by way of the present appeal.

4. Sh. O.P. Mannie, counsel for the appellants has assailed the

said award on quantum of damages. Counsel for the appellants

contended that the tribunal has 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. His son and wife have died in the same

accident but still he is survived by his one son, one daughter and

his aged mother. His mother died during the pendency of the

claim petition before the Tribunal and therefore, 4 sisters and one

brother of the deceased Mr. S.C. Talwar were impleaded as party.

The counsel submitted that the tribunal has erroneously applied

the multiplier of 11 while computing compensation when

according to the facts and circumstances of the case multiplier of

15 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 44 yrs of age only and was on a technical job and had he

survived his full natural life he would have been earning a salary

of Rs. 20,000 at present. The counsel contended that the tribunal

has erred in not awarding the non-pecuniary 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.

5. Nobody has been appearing for the respondents.

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

the record.

7. The deceased Sh. Talwar aged 44 years was working as an

Assistant Director (Engg.) in All India Radio. The appellants

claimants had produced PW2, an Officer of Ministry of Information

& Broadcast, who had brought on record the salary certificate of

the deceased. According to the record of service brought on the

record, the deceased drew Rs. 3,100/- in the month previous to

his death, which is supported by Ex. PW2/1. The PW2 also

deposed that had Sh. Talwar not died his untimely death, he

would have been promoted to the grade of Deputy Director in the

pay scale of Rs.3,000 to 4,500. After considering all these factors

I am of the view that the tribunal has not erred in taking the

income of the deceased at Rs. 4350, which was his last drawn

salary. On perusal of the award it comes in to light that the

tribunal had considered future prospects of the deceased and had

calculated the income after considering the future prospects, at

Rs. 6525/-pm. In view of the above discussion I do not find any

infirmity in the award on this count.

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

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

side as a big family depended on the sole income of the

deceased. Two of the members, namely Late. Smt. Shanti Talwar,

deceased's wife and late Master Gaurav Talwar also died in the

same grotesque accident in which Mr. Talwar died, leaving

behind one son, one daughter and an aged mother. In catena of

cases the Apex Court has in similar circumstances made 1/3 rd

deductions. Therefore, I am not inclined to interfere with the

award on this ground. The 1/3rd deductions towards personal

expenses do not require any interference.

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

that the tribunal has 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 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 deceased was 44 years of age and

the claimants children was 13 years and 9 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 and taking a balanced view after

considering applicable multiplier under II Schedule to 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.

10. 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. 35,000/-; compensation towards funeral expenses

is awarded at Rs. 5,000/- and compensation towards loss of

estate is awarded at Rs. 10,000/-.

11. As far as the contention pertaining to the awarding of

amount towards 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 is not a conventional head of damages.

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

would come to Rs. 52,200/- per annum and after applying

multiplier of 12 it comes to Rs. 6,26,400/-. Thus, the total loss of

dependency comes to Rs. 6,26,400/-. After considering Rs.

50,000/-, which is awarded towards non-pecuniary damages, the

total compensation comes out as Rs. 6,76,400/-.

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

enhanced to Rs. 6,77,552/- from Rs. 5,75,206/-. The differential

amount shall be paid 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 surviving children of the deceased in the

equal ratio by the respondent insurance company.

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

13.4.2009                              KAILASH GAMBHIR, J.