Sarla & Ors. vs Sh Ashok Kumar & Ors.
2009 Latest Caselaw 1477 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI


          FAO No. 323/1998

                    Judgment reserved on: 17.01.2008

                    Judgment delivered on: 20.4.2009.


Sarla & Ors.                              ..... Appellants.

           Through: Mr. O.P. Mannie, Adv.

                    Versus

Sh. Ashok Kumar & 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 in the Digest? No

KAILASH GAMBHIR, J. :

The present appeal arises out of the award dated 30/4/1998

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 2,24,000/- along with interest @ 12% per

annum to the claimants.

The brief conspectus of the facts is as follows:

On 7/10/1993 at about 7:00 a.m. the deceased Sh. Kush Rana @

Bobby Rana aged 35 years was driving his motorcycle bearing

registration no. DHT 502 while going to Hari Nagar via Rohtak

Road. When he reached near Chowk Multan Nagar on Rohtak

Road and was stationary due to the red signal, a bus bearing

registration no. DEP 9638 came from the direction of Peera Garhi

Chowk at a high speed and dashed in to the motorcycle of Sh.

Kush from behind, as the driver of the bus could not stop it due to

high speed. As a result of the forceful impact, Sh. Kush fell on the

road. He was removed to E.S.I. hospital from the accident site,

where he was declared as 'brought dead'. A claim petition was

filed by the claimants on 13/12/1993 and the award was passed

on 30/4/1998. Aggrieved with the said award the claimants have

preferred an appeal before this court for enhancement of

compensation.

Sh. O. P. Mannie, counsel for the appellants contended that

the tribunal has erred in assessing the income of the deceased at

Rs. 2,000 per month whereas the deceased was actually earning

Rs. 4,000 to 5,000 per month. 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 35yrs of age only and would have lived for another 30-35yrs

had he not met with the accident. 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 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 further maintained that the tribunal erred in making the

deduction of 1/3rd towards personal expenses when the deceased

was supporting a large family at the time of accident and is

survived by his widow wife, his aged parents and his minor son

and minor daughter. The counsel submitted that the tribunal has

erroneously applied the multiplier of 14 while computing

compensation when according to the second schedule multiplier

of 17 is applicable for the age group of above 30 years and not

exceeding 35 years as the deceased was of 35 years of age at

the time of the accident. 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 and

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

to the appellants. 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 for the appellants has relied upon following

judgments in support of his contentions:

(1) Mohinder Kaur & ors. Vs. Hira Nand sindhi (Ghoriwala) &

Ors. - 2007 ACJ 2123 (SC);

(2) Lekh Raj & Anr. Vs. Suram Singh & Ors. - 2007 ACJ 2165

(Del);

(3) An unreported judgment of Delhi High Court in United

India Insurance Co. Ltd. Vs. Surjeet Kaur in MAC APP No.

40/2004 decided on 25/1/2007;

(4) 2007 VI AD 730 (Delhi); and

(5) United India Insurance Co. Ltd. Vs. Sulochana & Ors.-III

(2007) ACC 50 (Mad) (DB).

Nobody has been appearing for the respondents.

I have heard learned counsel for the appellants and perused

the record.

On the contention of the counsel for the appellant regarding

income and future prospects of the deceased, I am of the view

that nothing has been brought on record to show that the

deceased was earning Rs. 4,000 to 5,000 per month or had a

bright future. On perusal of the award it is manifest that there is

contradiction in the deposition of the widow of the deceased and

that of Sh. Love Rana, brother of the deceased. The appellant no.

1 widow of the deceased deposed that the deceased was self

employed at the time of the accident and was running a business

of export of readymade garments. But she failed to produce any

document or any other evidence on record to show that he was

self employed or was running a readymade garment's business or

that he was earning Rs. 4,000 to 5,000 per month. Sh. Love Rana

has stated in his deposition that the deceased was doing the

work of export in readymade garments and used to do work for

him and used to supply them only to him. Sh. Love deposed that

the proprietorship firm is in his name and the deceased used to

do the work entrusted by him. He deposed that the deceased

used to maintain a motorcycle and was given allowance for that.

He also claimed that he had vouchers showing the amount given

to the deceased but no such vouchers were brought on record. In

his deposition he also stated that neither the deceased nor he

was an income tax payee. There is clear contradiction in the two

depositions.

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. In this

regard the Hon'ble Apex Court has in Oriental Insurance Co.

Ltd. v. Meena Variyal,(2007) 5 SCC 428 observed as under:

"It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation

could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act, which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis--vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment."

Therefore, the income of the deceased cannot be taken to

be Rs. 4000/- or 5000/- per month as asserted by the claimants.

But the income taken by the tribunal at Rs. 2,000/- per month is

also not supported by the documents on record. The tribunal has

failed to give any reason for taking Rs. 2000/- as the income of

the deceased.

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. In my

considered view, in the instant case, the tribunal erred in taking

Rs. 2,000 pm as the income of the deceased. The income of the

deceased should be taken as Rs. 1217 pm, which was the

prevalent minimum wages for a semi-skilled workman under the

Minimum Wages Act.

Nothing has also been brought on record to show the future

prospects of the deceased. In this regard also it is settled that the

claimants have to prove by cogent evidence that the deceased

had some skills or qualities which would have led to his

advancement in future career, earnings and life. In this regard

the relevant portion of para 8 of the judgment of the Apex Court

in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta,

(2006) 3 SCC 242 is reproduced below:

"The mere assertion of the claimants that the deceased would have earned more than Rs 8000 to Rs 10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be."

However, this court is of the view that along with taking the

aid of the Minimum Wages Act, the increase in the minimum

wages should also be granted. Increase in minimum wages is not

akin to future prospects for the reason that inflation eats into the

purchasing power of the rupee and to neutralize the falling power

of the rupee, wages are increased. A perusal of the minimum

wages notified under the Minimum Wages Act show that

minimum wages virtually more than double after every 10 years.

Therefore to compute the income of the deceased the tribunal

ought to have granted increase in minimum wages after doubling

the income and taking the mean of the same.

As regards the contention of the counsel for the appellant

that the 1/3rd deductions made by the tribunal are on the higher

side as the deceased is survived by his widow wife, his aged

parents and his minor son and minor daughter. In catena of cases

the Apex Court has in similar circumstances made 1/3rd

deductions. Therefore, I am not inclined to interfere with the

award on this ground.

As regards the contention of the counsel for the appellant

that the tribunal erred in applying the multiplier of 14 in the facts

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

committed error. This case pertains to the year 1993 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. 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 should have been applied.

Therefore, in the facts of the instant case the multiplier of 15

shall be applicable.

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, change of economy, policy being adopted by Reserve

Bank of India from time to time and other economic factors. In

this regard the Hon'ble Apex Court has in Abati Bezbaruah v.

Dy. Director General, Geological Survey of India,(2003) 3

SCC 148 observed as under:

"6. The question as to what should be the rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time.

18. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest

are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same, as it is consequential in the eye of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money, which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident claim cases having regard to the nature of provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4-A (3) of the Workmen's Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard-and- fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above."

On the basis of the above discussion, I do not find any

infirmity in the award regarding award of interest @ 12% pa by

the tribunal.

On the contention regarding that no compensation towards

non-pecuniary damages has been granted, I am of the view that

it should be granted to the claimants. The tribunal has erred in

not granting any compensation towards loss of love & affection,

funeral expenses, loss of estate, loss of consortium and the loss

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

appellants. In this regard Rs. 25,000/- is granted towards loss of

love and affection, Rs. 50,000/- is awarded towards loss of

consortium, Rs. 5,000/- is granted towards funeral expenses and

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

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

would come to Rs. 1825.50/- after doubling Rs. 1217/- to Rs.

2434/- and after taking the mean of them. After making 1/3 rd

deductions the monthly loss of dependency comes to Rs. 1217/-

and the annual loss of dependency comes to Rs. 14604/- per

annum and after applying multiplier of 15 it comes to Rs.

2,19,060/-. Thus, the total loss of dependency comes to Rs.

2,19,060/-. After considering Rs. 25,000/- towards loss of love and

affection, Rs. 50,000/- towards loss of consortium, Rs. 5,000/-

towards funeral expenses and Rs. 10,000/- towards loss of estate,

the total compensation comes out as Rs. 3,09,060/-.

In view of the above discussion, the total compensation is

enhanced to Rs. 3,09,060/- from Rs. 2,24,000/-. The differential

amount shall be paid to the appellants by respondent insurance

company with upto date interest @ 7.5% p.a. from the date of

filing of petition till realisation in the same proportion as awarded

by the Tribunal.

With the above directions, the present appeal is disposed

of.

20.4.2009                               KAILASH GAMBHIR, J.