Shiv Charan Dass Rastogi vs Rattan Singh & Ors.
2009 Latest Caselaw 1352 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       FAO No. 453/2000

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



Shiv Charan Dass Rastogi                ...... Appellant
                    Through: Mr. Sumit Gupta , Advocate.

                   versus

Rattan Singh & Ors.                  ..... Respondents
                        Through: None.


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 1/8/2000

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 85,000 along with interest @ 12% per

annum to the claimants.

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

On 8/12/1986 at about 5:45pm, the deceased Sh. Vijay

Kumar Rastogi was riding his motorcycle bearing registration no.

DIW 7233 along with Sh. Virender Yadav, who was pillion riding.

At the Outer Ring Road near Meera Bagh, the aforesaid

motorcycle met with an accident with a truck bearing registration

no. DBL 4611, which was being driven in a rash and negligent

manner by the driver. Sh. Vijay Kumar received fatal injuries and

succumbed to his injuries.

3. A claim petition was filed on 29.6.87 and an award was

made on 1/8/2000. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

4. Sh. Sumit Gupta, counsel for the appellant assailed the said

award on quantum of compensation. Counsel for the appellants

contended that the tribunal erred in assessing the income of the

deceased at Rs. 1200 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. 5000-6000 per

month. The counsel further maintained that the tribunal erred in

making the deduction to the tune of 1/3 of the income of the

deceased towards personal expenses, which is on the higher side.

The counsel submitted that the tribunal has erroneously applied

the multiplier of 10 while computing compensation, whereas,

when according to the facts and circumstances of the case

multiplier of 13 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 had he

not met with the accident. 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 @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, mental pain and sufferings and the

loss of services, which were being rendered by the deceased to

the appellants. It was also averred by the counsel that the

amount of Rs. 5000/- awarded towards loss of estate is on the

lower side.

5. Nobody has been appearing for the respondents.

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

the record.

7. The appellants claimants had not brought anything on

record to prove the income of the deceased. Sh. Shiv Charan

Dass Rastogi, father of the deceased, entered the witness box as

PW2 and in his deposition stated that the deceased was 30 years

of age and was doing his own business in the name and style of

M/s. Northern India Electrical Co. and was earning Rs. 5000-

6000/-pm. He also deposed that he was of 60 years of age and

his wife was 55 years old, as on 19/8/1994, meaning thereby that

the appellants claimants were aged about 52 years and 47 years

at the time of incident. It was deposed by the said witness that

the deceased was an income tax assessee. But no documents

were brought on record to prove the same. Sh. Virender Yadav,

PW3, deposed that the deceased was an electrical contractor and

working with him. On perusal of the award, it comes in to light

that the tribunal has assessed the income of the deceased as per

the income exempted from the income tax during the

assessment year 1987-88, which was Rs. 12,000 pa. After

considering all these factors, I am of the view that the tribunal

has erred in assessing the income of the deceased at Rs.

12,000pa, without there being any cogent evidence on record

regarding that.

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.

9. 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.

10. Therefore, the tribunal ought to have took the aid of the

Minimum Wages Act and should have assessed the income of the

deceased as per the wages notified for a skilled workman at the

relevant time, which was Rs.552 pm. But since, the tribunal has

assessed the income of the deceased at Rs. 12,000 pa and on

assessing the income according to the minimum wages, the

quantum of compensation will further dwindle down, therefore, in

the interest of justice, the income of the deceased as assessed by

the tribunal is not interfered with.

11. As regards the future prospects I am of the view that there

is no material on record to award future prospects. Therefore, the

tribunal committed no error in not granting future prospects in

the facts and circumstances of the case.

12. 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 the deceased is survived by his parents alone and was a

bachelor, so definitely he must have not been spending 1/3 rd

amount on himself. In catena of cases the Apex Court in similar

circumstances has made 1/3rd deductions. Therefore, I am not

inclined to interfere with the award on this ground.

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

that the tribunal has erred in applying the multiplier of 10 in the

facts and circumstances of the case, I feel that the tribunal has

committed error. This case pertains to the year 1986 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 aged about 35 yrs at

the time of the accident and is survived by his mother and father,

who were aged 52 years and 47 years of age at that time. 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 considering the applicable multiplier under the 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.

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 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.

15. On the contention regarding that the tribunal has erred in

not awarding compensation towards loss of love & affection,

funeral expenses, pain and sufferings and the loss of services,

which were being rendered by the deceased to the appellants

and that the compensation towards loss of estate is on the lower

side, I feel that the same should have been awarded by the

tribunal. In this regard compensation towards loss of love and

affection is awarded at Rs. 20,000/-; compensation towards

funeral expenses is awarded at Rs. 5,000/- and compensation

towards loss of estate is enhanced to Rs. 10,000/-.

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 son 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. On the basis of the discussion, the income of the deceased is

taken as Rs. 12,000/- pa. After making 1/3rd deductions the

monthly loss of dependency comes to Rs. 8,000/-pa and after

applying multiplier of 12 it comes to Rs. 96,000/-. Thus, the total

loss of dependency comes to Rs. 96,000/-. After considering Rs.

35,000/-, which is granted towards non-pecuniary damages, the

total compensation comes out as Rs. 1,31,000/-.

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

enhanced to Rs. 1,31,000/- from Rs. 85,000 /- with interest @

7.5% per annum from the date of filing of the petition till

realisation and the same should be paid to the appellant in equal

proportion by the respondent insurance company.

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

13.4.2009                              KAILASH GAMBHIR, J