Delhi High Court
Panwati Devi & Ors. vs Satish Bhardwaj & Anr on 13 April, 2009
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 81/91
Judgment reserved on: 24th March, 2008
% Judgment delivered on: 13.4.2009
Panwati Devi & Ors. ...... Appellants
Through: Mr. Y.R. Sharma, Advocate.
versus
Satish Bhardwaj & Anr. ..... Respondents
Through: Ms. Avnish Ahlawat, 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 2.1.91 of the Motor
Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 1,53,000/-
FAO No. 81/91 page 1 of 7
along with interest @ 12% per annum to the claimants.
2. The brief conspectus of the facts is as follows:
3. On 26.11.88 at about 2.35 p.m deceased Kapleshwar Pandit aged
about 40 years was doing the job of Labourer on truck no. DIL 3702 and
was sitting in the cabin. When the said truck reached opposite Palam
Hospital on Palam Road, one DTC bus bearing registration no. DHP 3281 on
route no. 772 driven in a rash and negligent manner by Satish Bhardwaj ,
respondent no.1, came from opposite direction at a very fast speed and
struck against the truck due to which the occupants of the truck received
injuries and Kapleshwar Pandit deceased received fatal injuries and he died
on the spot.
4. A claim petition was filed on 19.1.89 and an award was passed on
02.01.91. Aggrieved with the said award enhancement is claimed by way of
the present appeal.
5. Mr.YR Sharma counsel for the appellants contended that the tribunal
erred in assessing the age of the deceased which itself was about 40 years
only. It was further contended that the Ld.Tribunal erred in assessing the
income of the deceased at Rs.40/- to Rs.45/- per day whereas the deceased
was earning Rs.60/- per day and his monthly income was Rs.1800/-. The
counsel further submitted that the Ld. Tribunal erred in applying a
multiplier of 15 years only in computing the total compensation while
FAO No. 81/91 page 2 of 7
multiplier of atleast 25 should have been applied. The counsel urged that
the Ld.Tribunal erred in not awarding the compensation on account of loss
of consortium and loss of love and affection. 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 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 interest @ 18% per annum in place of only
12% 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.
6. Per Contra Ms.Avnish Ahlawat, counsel for the respondent insurance
company submitted that there is no illegality in the impugned award.
Counsel further contended that award passed by Tribunal is absolutely fair,
just and reasonable and no fault can be found with the same.
7. I have heard learned counsel for the parties and perused the record.
8. The appellants claimants did not produce on record any income proof
FAO No. 81/91 page 3 of 7
of the deceased. The versions of the widow of the deceased and Pw2, a co-
labourer who was also travelling with the deceased in the said truck, cannot
be considered as authentic in the absence of any document on record.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. 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. After considering
all these factors I am of the view that the tribunal has erred in assessing
the income of the deceased at Rs. 850/- pm and it should have assessed
the income in accordance with the wages notified under the Minimum
Wages Act as on the date of the accident. But since the respondent did not
raise a dispute regarding the income of the deceased and also considering
the fact that if at this stage income is assessed in accordance with the MW
Act, then the compensation would further dwindle down, therefore, in the
interest of justice no interference is made in the award in this regard by this
court.
9. As regards the future prospects I am of the view that there is no
material on record to award future prospects. It is no more res integra that
FAO No. 81/91 page 4 of 7
mere bald assertions regarding the future prospects of the deceased are of
no help to the claimants in the absence of any reliable evidence being
brought on record. Therefore, the tribunal committed no error in not
granting future prospects in the facts and circumstances of the case.
10. As regards the contention of the counsel for the appellant that the
tribunal 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. According to the
post mortem report, Ex.P1 the deceased was of 40 years of age at the time
of the accident and he is survived by his wife, two daughters and two sons.
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
rightly applied by the tribunal.
11. 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
FAO No. 81/91 page 5 of 7
enhanced to 18% 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.
12. On the contention regarding that the tribunal 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 awarded at Rs.40,000/-; compensation towards funeral
expenses is awarded at Rs.10,000/- and compensation towards loss of
estate is awarded at Rs.10,000/-. Further, Rs.50,000/- is awarded towards
FAO No. 81/91 page 6 of 7
loss of consortium.
13. On the basis of the above discussion, the loss of dependency as
assessed by the tribunal after taking income of the deceased at Rs. 850/-
pm and applying multiplier of 15 comes to Rs. 1,53,000/-. After considering
Rs.1,10,000/- towards non-pecuniary damages, the total compensation
comes out as Rs.2,63,000/-.
14. In view of the above discussion, the total compensation is enhanced
to Rs.2,63,000/- from Rs.1,53,000/- with interest @ 7.5% per annum from
the date of filing of the petition till final realisation and the same should be
paid to the appellants by the respondent no. 2 in the same ratio as
awarded by the tribunal.
15. The appeal stands disposed of.
13.4.2009 KAILASH GAMBHIR, J
FAO No. 81/91 page 7 of 7
