Smt.Majidan And Ors. vs New India Assurance Co.Ltd.
2009 Latest Caselaw 1337 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No. 455/2003

                         Judgment reserved on: 29.2.2008
%                        Judgment delivered on: 13.4.2009


Smt. Majidan And Ors.                  ...... Appellants
                    Through: Mr. B.S. Sharma and Mr.
                    R.K. Saini, Advocates

versus


New India Assurance Co. Ltd.                ..... Respondent
                    Through:


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 No
      in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated

10.4.2003 of the Motor Accident Claims Tribunal

whereby the Tribunal awarded a sum of Rs. 2,16,000/-

along with interest @ 9% per annum to the claimants.

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

3. On 19.6.1989 at about 6.00 p.m. late Shri Baljeet

Singh was going on a cycle on his left side when a

private bus bearing registration No. DEP 7258 driven in

a rash and negligent manner struck against him due to

which he received grievous injuries and died.

4. A claim petition was filed on 25.8.1989 and an

award was passed on 10.4.2003. 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. Shri B.S. Sharma, counsel for

the appellants contended that the tribunal erred in

assessing the income of the deceased at Rs. 1000/- 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. 5000/- per

month. The counsel submitted that the tribunal

erroneously applied the multiplier of 15 while computing

compensation when according to the facts and

circumstances of the case multiplier of 17 should have

been applied. 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 an 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 @ 12% per

annum in place of only 9% per annum. 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.

6. Nobody has appeared for the respondents.

7. I have heard learned counsel for the appellants and

perused the record.

8. The appellants claimants examined PW5 Sh. Beer

Singh who stated that the deceased was employed as a

driver of the Oil Tanker of Sudama Enterprises

Corporation. The said witness had produced on record a

salary certificate of the deceased as Ex. PW5/1

according to which salary of the deceased at the time of

accident was Rs. 5000/- per month. But on perusal of the

award as well as the record, it is manifest that the said

salary certificate was not duly proved and further no

cogent evidence was brought on record regarding the

income of the deceased. Therefore, the Tribunal

assessed the income of the deceased according to the

Minimum Wages Act. After considering all these factors

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

assessing the income of the deceased as that of a skilled

workman at Rs. 1,000/- (after taking aid of the MW Act).

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. Therefore, no

interference is made in relation to income of the

deceased by this court.

11. As regards the future prospects no sufficient

material was placed on record by the appellant yet it has

been the consistent view of this court that whenever aid

of Minimum Wages Act is taken while computing

income, then increase in minimum wages should also be

considered. It is well settled that future prospects are

not akin to increase in minimum wages. To neutralize

increase in cost of living and price index, the minimum

wages are increased from time to time. 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 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.

12. As regards the contention of the counsel for the

appellant that the tribunal has erred in applying the

multiplier of 15 in the facts and circumstances of the

case, I feel that the tribunal has committed no error.

This case pertains to the year 1989 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. At the time of

the accident the age of the deceased was 35 years and

he is survived by his widow, two daughters and one son.

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 15 has been correctly applied

by the Tribunal. Therefore, no interference is made in

relation to the multiplier of 15 applied by the Tribunal.

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

interest of 9% p.a. awarded by the tribunal is on the

lower side and the same should be enhanced to 12%

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 @ 9% p.a. by the

tribunal and the same is not interfered with.

14. On the contention regarding that the tribunal has

erred in not granting adequate compensation towards

loss of love & affection, funeral expenses and loss of

estate, whereas, no compensation has been granted

towards 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 enhanced to Rs. 30,000;

compensation towards funeral expenses is enhanced to

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

enhanced to Rs.10,000/- Further, Rs. 50,000/- is

awarded towards loss of consortium.

15. 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.

16. On the basis of the discussion, the income of the

deceased would come to Rs. 1,500/- after doubling Rs.

1,000/- to Rs. 2,000/- and after taking the mean of them.

After making 1/3rd deductions the monthly loss of

dependency comes to Rs. 1,000/- and the annual loss of

dependency comes to Rs. 12,000/- per annum and after

applying multiplier of 15, it comes to Rs. 1,80,000/-

Thus, the total loss of dependency comes to Rs.

1,80,000/- After considering Rs. 95,000/- which is

awarded towards non-pecuniary damages, the total

compensation comes out as Rs.2,75,000/-.

17. In view of the above discussion, the total

compensation is enhanced to Rs. 2,75,000/- from Rs.

2,16,000/- 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 proportion as awarded

by the Tribunal.

18. With the above direction, the present appeal is

disposed of.

April 13, 2009                   KAILASH GAMBHIR, J
'raj'