Smt Kamlesh & Ors. vs Surain Singh & Ors.
2009 Latest Caselaw 1485 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                      FAO No. 317/1998

                      Judgment reserved on 27.3.2008

                      Judgment delivered on: 20.4.2009


Smt. Kamlesh & Ors.                     ..... Appellant.
                  Through: Mr. Ashok Popli, Adv.

                      Versus

Surain Singh & Ors.                        ..... Respondents
                      Through: 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
      in the Digest?                                       No


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 25/3/1998

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 1,64,000/- along with interest @ 12% per

annum to the claimants.

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

3. Om Prakash 34 years old person engaged in tailoring work

on contract basis is stated to have died on 21.3.1991 in an

accident on main road near Montfort School, Ashok Vihar Phase -

I within the jurisdiction of P.S. Ashok Vihar involving two wheeler

scooter bearing registration No. DBZ 1126 and truck bearing

registration No. DIG 6214. The deceased was travelling as a

pillion rider on the scooter which was driven by one Jagdamba

Prasad at slow speed on correct side of the road in the direction

of Mangolpuri from Wazirupur village via main road Ashok Vihar

Phase - I and when the scooter reached at the place aforesaid at

about 9 p.m. the truck driven by respondent No. 3 came at a very

fast speed from rear side in rash/negligent manner and hit

against the scooter due to which impact the deceased fell down

on the road and sustained head injuries which proved fatal.

4. A claim petition was filed on 18/4/1991 and an award was

passed on 25/3/1998. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. Ashok Popli counsel for the appellants contended that

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

854/- 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. 2,000/- per month. The counsel

submitted that the tribunal has erroneously applied the multiplier

of 15 while computing compensation when according to the facts

and circumstances of the case multiplier of 17 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 34 yrs of age only and would

have lived for another 30-35 yrs 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 @ 18% 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.

6. Nobody appeared for the respondents.

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

the record.

8. As regards income of the deceased, the case of the

appellants claimants is that the deceased was earning Rs. 2,000-

2,500/- pm from his tailoring work and this is supported by the

testimony of Sh. Jagdamba Prasad. Apart from mere assertions,

the appellants claimants had brought nothing on record to prove

the income of the deceased. 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.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.

9. After considering all these factors I am of the view that the

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

854/- pm as per the minimum wages notified for an unskilled

person. The tribunal should have assessed the income as per the

minimum wages notified for a skilled person at Rs. 1104/-, as

deceased was stated to be tailor.

10. Therefore, interference is made in relation to income of the

deceased by this court to this extent.

11. Furthermore, 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. For instance, minimum wages of skilled labourers as on

1.1.1980 was Rs. 320/- per month and same rose to Rs. 1,083/-

per month in the year 1990. Meaning thereby, from year 1980 to

year 1990, there has been an increase of nearly 238% in the

minimum wages. Thus, it could safely be assumed that income of

the deceased would have doubled in the next 10 years.

12. Therefore, the tribunal committed no error in considering

increase in minimum wages, while assessing the income of the

deceased.

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

that the tribunal has erred in applying the multiplier of 15 in the

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

committed no error. This case pertains to the year 1991 and at

that time II schedule to the Motor Vehicles Act was not brought

on the statute book. 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 age of the deceased at the time of

the accident was 34 years and he is survived by his widow and

three children. 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 multiplier

applicable as per the II Schedule to the MV Act, the multiplier of

15 has been rightly applied by the tribunal.

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 18% 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 granting adequate compensation towards loss of love &

affection, funeral expenses and loss of estate, whereas, no

compensation has been granted towards 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 enhanced to Rs. 30,000/-; compensation

towards funeral expenses is enhanced to Rs. 10,000/- and

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

Further, Rs. 50,000/- is awarded towards loss of consortium.

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 the deceased 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

would come to Rs. 1,656 after doubling Rs. 1,104 to Rs. 2,208

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

the monthly loss of dependency comes to Rs. 1,104 and the

annual loss of dependency comes to Rs. 13,248/- per annum and

after applying multiplier of 15 it comes to Rs. 1,98,720/-. Thus,

the total loss of dependency comes to Rs. 1,98,720/-. After

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

pecuniary damages, the total compensation comes out as Rs.

2,98,720/-.

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

enhanced to Rs. 2,98,720/- from Rs. 1,64,000/- with interest on

the differential amount @ 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.

20.4.2009                                KAILASH GAMBHIR,J.