Kshitif Mohini & Ors. vs Shri Hari Parshad Aggarwal & Anr
2009 Latest Caselaw 1345 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                         FAO No. 313/2001

                        Judgment reserved on 21.2.2008

                        Judgment delivered on: 13.4.2009


Kshitif Mohini & Ors.                  ..... Appellant.
                        Through: Mr V.P. Chaudhry, Sr. Adv.
                                 With Mr. Nitinjya Chaudhry, Adv.
                        versus

Shri Hari Parshad Aggarwal & Anr.        ..... Respondents

Nemo

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may No be allowed to see the judgment?

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

6.1.2001 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 5,70,816/-along with interest @

12% per annum to the claimants.

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

On 23.11.94 at about 3.30 PM Shri Raj Kumar Rohilla while

driving his two wheeler scooter bearing registration No. DAM-

6946 was proceeding on GT Road while on his way from

Ghaziabad to Delhi and was passing by the side of Modern

Industries Ltd. dituated within the jurisdiction of PS Sahibabad

and the scooter at that time was proceeding on proper left side of

the road at a moderate speed when a truck bearing Registration

No. WB-11-7458 came from behind at a high speed being driven

rashly and negligently the extreme left side of the road and

struck against the scooter driven by Shri Raj Kumar Rohilla from

behind as a result of which the scooterist and the scooter were

thrown away on the road and the scooterist was run over by the

front left wheel of the truck. Further, the driver of the truck

absconded from the place of accident after leaving truck on the

spot. The injured was rushed to Narender Mohan Hospital where

he was declared as brought dead.

3. A claim petition was filed on 6.2.95 and an award was

passed on 6.1.01. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

4. The counsel submitted that the tribunal erred in

making the deduction to the tune of Rs.1616/- PM 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, son and parents. The counsel

submitted that the tribunal erroneously applied the multiplier of

12 while computing compensation when according to the facts

and circumstances of the case multiplier of 16 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 39 yrs of age only. The counsel

also stated that had the deceased not met with his untimely

death he would have expanded his business and would have

been earning much more in the near future. It was also urged 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 @ 15% per annum in

place of only 12% 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.

5. Nobody has appeared for the respondents.

6. I have heard learned counsel for the appellants and

perused the record.

7. The appellant No.1 widow of deceased deposed that her

husband was working as a clerk at MCD and was drawing a

monthly salary of Rs.3719/- p.m. the salary certificate proving

the said deposition is marked as Ex. PW 2/A. Furthermore, PW 3

employed with MCD also supported her deposition. Considering

these facts, I am of the view that the tribunal committed no error

in assessing the income of the deceased at Rs.3719/- p.m.

8. Therefore, no interference is made in the award in

relation to income of the deceased by this court.

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

there was sufficient material placed on record to award future

prospects. Therefore, the tribunal rightly granted future

prospects in the facts and circumstances of the case. It has

come in the deposition of both, appellant No. 1 and PW 3 that

after implementation of 5th pay commission, the income of the

deceased would have increased. Thus, no interference is made in

this regard.

10 . As regards the contention of the counsel for the

appellant that the deduction to the tune of Rs.1616/- is made by

the tribunal after applying unit method is on the high side as the

deceased is survived by his widow, two children and aged

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

circumstances applied unit system and no fault can be found with

the same. Therefore, I am not inclined to interfere with the award

on this ground.

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 November, 1994 and

at that time II schedule to the Motor Vehicles Act had been

brought on the statute books. The said schedule came on the

statute book in November, 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 at the time of the accident was of 39 years of age and

is survived by his widow two children and aged parents. 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 after considering applicable multiplier under the II

Schedule to the M.V. 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 loss of love &

affection, funeral expenses and loss of estate, 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 to 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 loss of

consortium.

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

deceased would come to Rs.5578.50 after doubling Rs.3719/- to

Rs.7438/- and after taking the mean of them. After making

deductions to the tune of Rs.1616/- the monthly loss of

dependency comes to Rs. 3964/- and the annual loss of

dependency comes to Rs.47568/- per annum and after applying

multiplier of 16 it comes to Rs. 7,61,088/-. Thus, the total loss of

dependency comes to Rs.7,61,088/-. After considering

Rs.1,10,000/-, which is granted towards the total compensation

comes out as Rs.8,71,088/-.

15 . In view of the above discussion, the total

compensation is enhanced to Rs.8,71,088/- from Rs.5,20,816/-

with interest @ 7.5% per annum from the date of filing of the

present petition till realization and the same should be paid to

the appellants by the respondent insurance company in the same

ratio as apportioned by the tribunal.

16 . With the above direction, the present appeal is

disposed of.

13.4.2009                                 KAILASH GAMBHIR,J.