Smt.Neha Gupta vs Dharamvir Singh & Anr
2009 Latest Caselaw 1353 Del

      * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           FAO No. 323/2003

%                     Judgment reserved on: February 25, 2008
                      Judgment delivered on: 13.4.2009


Smt. Neha Gupta                           ...... Appellant
                      Through: Mr. Amit Kumar Pandey, Adv.

                              versus


Dharamvir Singh & Anr.                ..... Respondents
                   Through: Mr. Kanwal Chaudhary, 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 13.1.2003

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 3,87,200/- along with interest @ 9% per

annum to the claimants.

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

3. On 12.9.98 at about 10:00 P.M., Shri Jagdish Prasad Gupta

was coming in his scooter bearing registration no. DL-85-H-9496

from Madhuban Chowk, Pitam Pura and while turning towards

right side on road no. 44 towards Lok Vihar, Delhi the offending

vehicle bearing registration no. DL-2C-K-0534 which was coming

from road no. 44 being driven by respondent no. 1 in a rash and

negligent manner hit the scooter of Shri Jagdish Prasad Gupta.

Due to that the Shri Jagdish Prasad Gupta sustained severe

injuries and was immediately taken to nearby Sarvodaya

Hospital and then to AIIMS where he succumbed to his injuries

on 13.9.98.

4. A claim petition was filed on 27.7.1999 and an award was

made on 13.1.2003. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. Amit Kumar Pandey, counsel for the appellants

contended that the tribunal erred in assessing the income of the

deceased at Rs.3,500/ 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. 5,500/- per month.

The counsel further maintained that the tribunal erred in making

the deduction to the tune of 1/3rd of the income of the deceased

towards personal expenses, while the deceased was supporting a

large family at the time of accident and is survived by his wife

and two minor sons and mother. The counsel submitted that the

tribunal erroneously applied the multiplier of 12 while

computing compensation, whereas, 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 only 37 yrs of age and

would have lived for another 50 yrs had she not met with the

accident. The counsel also stated that had the deceased not met

with untimely death he would have expanded his business and

would have been earning much more in the near future. 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 @ 10% 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, mental pain and

sufferings and the loss of services, which were being rendered

by the deceased to the appellants.

6. Mr. Kanwal Chaudhary, counsel for respondent no. 3

contended that the award passed by the learned tribunal is just

and fair and requires no interference by this court.

7. I have heard the learned counsel for the parties and

perused the record.

8. With regard to the income of the deceased the case of the

appellants is that the deceased was 37 years of age at the time

of the accident and was working as a Manager with M/s Incan

India Pvt. Ltd.at a salary of Rs. 3,500/- p.m. PW2 Rajiv Gupta

proved the salary certificate Ex PW2/1 of the deceased and

deposed that he was earning Rs.3,500/- p.m. at the time of the

accident. He also deposed that the deceased would have been

promoted to the post of Sr. Manager had he not met his untimely

death.

The tribunal took mean of Rs.3,500/- p.m., the income

of the deceased at the time of his death and Rs.4,200/- P.M.

notional future income of the deceased. However, the tribunal

erred in assessing the future prospects of the deceased. The

tribunal instead of taking mean of Rs.3,500/- and Rs. 4,200/-

ought to have taken mean of Rs.3,500/- and double of Rs.3,500/-

i.e. 7,000/- which would come to Rs.5,250/- p.m. Thus, the

income of the deceased after considering future prospects comes

to Rs.5,250/- p.m. Thus, the award is modified to this extent.

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

that the 1/3rd deduction made by the tribunal is on the higher

side as the deceased is survived by his wife, two minor sons and

aged mother. Considering the facts of the instant case, I feel that

the interest of justice would be best served if 1/4 th deductions

towards personal expenses is made herein. Thus after deduction

of 1/4th on account of the personal expenses, net loss of

dependency comes to (5250-1312.50) i.e. Rs.3937.50 p.m.

Therefore, the award is modified to this extent.

10. 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 the year 1998 when II

Schedule to the Motor Vehicles Act had been brought on the

statute books. 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 16 should have been applied as per the II

Schedule. Therefore, in the facts of the instant case the

multiplier of 16 shall be applicable.

11. 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 10% 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 into 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% pa by the tribunal and

the same is not interfered with.

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

not granting adequate compensation towards funeral expenses

and loss of love & affection, 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

affections is Rs.30,000/-; compensation towards funeral

expenses is rightly awarded by tribunal 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

instead of Rs.10,000/- as awarded by the tribunal.

13. On the basis of the discussion, the income of the deceased

would come to Rs. 5,250/- after doubling Rs.3,500/- to Rs. 7,000/-

and after taking the mean of them. After making 1/4 th deductions

the monthly loss of dependency comes to Rs. 3,937.50 and the

annual loss of dependency comes to Rs.47,250/- per annum and

after applying multiplier of 16 it comes to Rs. 7,56,000/-. Thus,

the total loss of dependency comes to Rs.7,56,000/-. After

considering Rs.1,00,000/-, which is granted towards non

pecuniary damages, the total compensation comes out as

Rs.8,56,000/-.

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

enhanced to Rs. 8,56,000/- from Rs. 3,87,200/- with interest @

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

realisation and the same should be paid to the appellants by the

respondent/insurance company. The enhanced compensation be

apportioned amongst the appellants in the same ratio as done

by the tribunal.

13th April,2009                             KAILASH GAMBHIR, J