Sh Anand Prakash & Anr vs Sh Chandrakesh & Ors.
2009 Latest Caselaw 1348 Del

        * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO No. No. 356/99


%                      Judgment reserved on: 20.2.2008
                       Judgment delivered on: 13.4.2009


Sh. Anand Prakash & Anr.                ...... Appellants
                    Through: Mr. O.P. Mannie, Adv.

                                  versus


Sh. Chandrakesh & Ors.                        ..... Respondents
                   Through: Nemo

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 15 th March

1999 of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 1,25,000/- with a simple interest @ 12% p.a.

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

On 8th June 1995, the deceased Ms. Veena, aged 26 Years was

travelling with her relatives in a TSR from Mayur Vihar to Sarojini

Nagar. On reaching near Kotla Road, a DTC bus bearing license No.

DLIP-9168 came from the opposite direction driven in a rash and

negligent manner and hit the said TSR. Resultantly, the occupants of

the TSR received grievous injuries and Ms. Veena received fatal injuries

and when she was taken to the hospital the doctors declared her as

'brought dead'.

3. A claim petition was filed on 9th November, 1995 and an award

was passed on 15th March, 1999. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

4. The appellants have assailed the said award on quantum of

compensation. Sh. O.P.Mannie, Counsel for the appellants contended

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

2,500/- 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. 5,000/- to 6,000/- per month. The

counsel further maintained that the tribunal erred in making the

deduction to the tune of 50% of the income of the deceased towards

personal expenses. The counsel submitted that the tribunal

erroneously applied the multiplier of 5 while computing compensation

when according to the facts and circumstances of the case multiplier of

24 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 she was of 26 yrs of age only and

would have lived longer had she not met with the accident. 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 @ 24% per annum in place of only 12% per annum. The

counsel contended that the tribunal also erred in not awarding just

compensation towards loss of love & affection and funeral expenses.

5. Nobody has appeared for the respondents.

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

record.

7. The appellants claimants did not produce on record anything

cogent to prove the income of the deceased. The appellants claimants

had placed on record the certificate of the deceased to show that she

was a postgraduate. It was also averred by them that the deceased

was running a school in Baroda and was earning about Rs.4000 to

Rs.6000. Apart from these bald assertions no other corroborative

evidence was placed on record by them. They could have examined

the teachers or the staff members of the said school i.e. Veena Public

School to prove the income of the deceased at the time of the

accident. There is nothing on record to substantiate that the deceased

was running the school and was earning between Rs.4000 to Rs.6000

per month. After considering all these factors, I am of the view that the

tribunal has not erred in assessing the income of the deceased

according to the Minimum Wages Act at Rs. 2500/- per month.

8. 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. Therefore, no

interference is made in relation to income of the deceased by this

court.

9. As regards the future prospects, 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. Thus, it could

safely be assumed that income of the deceased would have doubled in

the next 10 years.

10. On perusal of the award it is manifest that the tribunal assessed

the income of the deceased after doubling the income of rupees 2500

to rupees 5000 and then taking the mean of the same. Therefore, the

tribunal committed no error in this regard and the award is not

interfered with on this count.

11. As regards the contention of the counsel for the appellant that

50% deduction made by the tribunal is on the higher side as the

deceased is survived by her parents and two brothers. On perusal of

the award it comes into light the tribunal made 50% deduction towards

personal expenses of the deceased after considering the fact that the

parents of the deceased would not be solely dependent on the

deceased who was of marriageable age and was survived by two

brothers as well. I feel that the tribunal rightly deducted 50% towards

personal expenses. Therefore, I am not inclined to interfere with the

award on this ground.

12. As regards the contention of the counsel for the appellant that

the tribunal erred in applying the multiplier of 5 in the facts and

circumstances of the case, I feel that the tribunal has committed no

error. The deceased was aged 26 years and the claimant father of the

deceased was of 62 years at the time of the accident. It is no more res

integra that the choice of the multiplier is determined by the age of the

deceased or that of the claimants, whichever is higher. In this regard

in New India Assurance Co. Ltd. v. Kalpana,(2007) 3 SCC 538,

the Honble Apex Court has observed as under:

"7. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."

13. In the facts of the instant case the tribunal has correctly applied

the multiplier of 5 in accordance with the age of the claimants, which is

higher than the age of the deceased.

14. 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 24% 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.

15. On the contention regarding that the tribunal erred in not

granting adequate compensation towards loss of love & affection and

funeral expenses, I feel that the same is inadequate. In this regard

compensation towards loss of love and affection is enhanced to Rs.

20,000/- and compensation towards funeral expenses is enhanced to

Rs. 5000/-.

16. 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 their only 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.

17. Therefore, after doubling Rs.2500/- to Rs.5000/- and taking its

mean, the income of the deceased would come to Rs.3750/- and after

making 50% deductions, the monthly loss of dependency would come

to Rs.1875/- and annual dependency would be 22,500/- Applying

multiplies of 5, the total compensation towards loss of dependency

comes to Rs.1,12,500/-. Considering non-pecuniary damages and loss

of dependency together, the total compensation comes to Rs.

1,37,500/-

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

enhanced to Rs. 1,37,500/- from Rs. 1,25,000/- 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.

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

April 13, 2009                         KAILASH GAMBHIR, J