Smt. Nirmala Aggarwal & Ors. vs Rajeev Sharma & Ors.
2009 Latest Caselaw 1490 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

               FAO No. 102/99

                         Judgment reserved on 2.4.2008

                         Judgment delivered on: 20.4.2009

Smt. Nirmala Aggarwal & Ors.                ..... Appellants.
                   Through: Mr. V P Chaudhary, Sr. Adv.
                             with Mr. Nitinjya Chaudhary,
                             Adv.



                    versus

Rajeev Sharma & Ors.                    ..... Respondents
                 Through:

     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 2.9.1998

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 6,24,000/- along with interest @ 12% per

annum to the claimants.

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

3. On 28.5.88 deceased Pramod Kumar was travelling in his

own Maruti Car bearing registration No: DIC 6974 while the

respondent No: 1 was driving his car bearing registration No: DBG

1408 rashly and negligently and in a fast speed from the side of

Oberoi Hotel and hit the car of the deceased. Due to the impact

deceased received severe and grievous injuries and died on same

day.

4. A claim petition was filed on 18.11.1988 and an award was

passed on 2.9.1998. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. Nitinjya Chaudhary, counsel for the appellants

contended that the tribunal erred in assessing the income of the

deceased at Rs. 6,000/- 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. 20,000/- 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 when the deceased was supporting a

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

and three children. The counsel submitted that the tribunal

erroneously applied the multiplier of 13 while computing

compensation when 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 of 39 yrs of age only and would have lived

for another 30-40 yrs had she 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 contended that the

tribunal 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.

1. General Manager, Kerala State Road Transport

Corporation Vs. Susamma Thomas 1994 ACJ 1.

2. Hussan Bano Vs. Subash Chnad 2003 ACJ 1114.

3. Jyoti Kaul Vs. State of Madhya Pradesh & Ors. 2000

ACJ 1368.

4. A C Gupta Vs. New India Assurance Company Ltd.,

2002 ACJ 312.

5. Abati Bezbaruah Vs. Deputy Director General,

Geological Survey of India 2003 ACJ 680.

6, Nobody has been appearing for the respondents.

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

the record.

8. Appellant No: 1 examined herself as PW-2 and deposed that

deceased was her husband and he was carrying on business of

import & export and was earning Rs. 10,000/- per month and also

that he used to give his entire earnings to her for running the

household expenses and father of the deceased deposed his

income at Rs. 15,000/- p.m.

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

tribunal has assessed the income of the deceased at Rs. 6,000/-.

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.

10. 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.

11. The Tribunal ought to have assessed the income of the

deceased as per the said thumb rule but since no dispute in this

regard is raised by the respondents, therefore, no interference is

made in relation to income of the deceased by this court in the

interest of justice.

12. 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.

13. 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 wife and three children. 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.

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

that the tribunal has erred in applying the multiplier of 13 in the

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

committed no error. This case pertains to the year 1988 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 age of the deceased at the time of

the accident was 39 years of age and 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 considering the applicable multiplier under the II

Schedule to the Motor Vehicles Act and taking a balanced view

the multiplier of 13 has been rightly applied by the Tribunal thus

no interference is called for.

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

not granting compensation towards non-pecuniary damages, in

this regard compensation towards loss of love and affection is

awarded at Rs. 30,000/-; compensation towards funeral expenses

is awarded 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.

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. Therefore, the total loss of

dependency comes to Rs. 6,24,000/- (6,000 x 2/3 x 12 x 13).

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

non pecuniary damages the total compensation comes out as

Rs.7,24,000/-.

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

enhanced to Rs.7,24,000/- from Rs. 6,24,000/- 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.

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

20.4.2009                              KAILASH GAMBHIR, J.