Babu Lal & Anr. vs New India Assurance Co.Ltd. & Ors.
2009 Latest Caselaw 1494 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                     FAO No. 552/2002

                     Judgment reserved on 14.3.2008

                     Judgment delivered on: 20.4.2009


Babu Lal & Anr.                         ..... Appellants.
                     Through: Mr. O.P. Goyal, Adv.

                     Versus

New India Assurance Co. Ltd. & Ors.        ..... Respondent
                  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.

The present appeal arises out of the award dated 24/7/2002

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 89,200/- along with interest @ 9% per

annum to the claimants.

The brief conspectus of the facts is as follows:

On 17/2/1990 the deceased Ganesh Kumar was riding his bicycle

near Kingsway camp when suddenly a mini bus bearing

registration no. DEp 6404 being driven in a rash and negligent

manner hit the said cycle. Resultantly, Ganesh fell on the road

and later on died.

A claim petition was filed on 11/4/1990 and an award was

passed on 24/7/2002. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

Sh. O.P. Goyal counsel for the appellants contended that the

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

2,000/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the deceased after taking into consideration future

prospects of the deceased at Rs. 4,000/- per month. The counsel

submitted that the tribunal has erroneously applied the multiplier

of 11 while computing compensation when according to the facts

and circumstances of the case multiplier of 15 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 20 yrs of age only and would

have lived for another 40-50 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 her 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 @ 12% per annum in place of

only 9% per annum. The counsel contended that the tribunal also

erred in not awarding adequate 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.

Nobody appeared for the respondents.

I have heard learned counsel for the appellants and perused

the record.

As regards income, the PW1 deposed that the deceased

used to earn Rs. 1,200/- pm and PW2 father of the deceased

deposed that the deceased was employed at Pamposh

Electronics and apart from other part time jobs he used to earn

Rs. 800-900 /- Pm. The appellants claimants had not brought on

record any documentary evidence to prove that the deceased

was employer and as to what was the income of the deceased.

After considering all these factors the tribunal has assessed the

income of the deceased at Rs. 2,000/- pm. 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. But considering that no dispute has been

raised by the respondents in this regard no interference is made

in relation to income of the deceased by this court, in the interest

of justice.

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

is no sufficient 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.

As regards the contention of the counsel for the appellant

that the tribunal erred in applying the multiplier of 11 in the facts

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

committed error. This case pertains to the year 1990 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 20 years and he is survived by his aged parents,

whose age was 44 years and 42 years. 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 12 shall be applicable.

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 12% 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 @ 9% pa by the tribunal and the

same is not interfered with.

On the contention regarding that the tribunal has erred in

not granting adequate compensation towards loss of love &

affection and loss of estate, whereas, no compensation has been

granted towards funeral expenses 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

awarded at Rs. 10,000/-; compensation towards funeral expenses

is awarded at Rs. 10,000/- and compensation towards loss of

estate is awarded at Rs. 10,000/-.

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 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.

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

would come to Rs. 2,000 as taken by the tribunal and after

making 1/3rd deductions the monthly loss of dependency comes

to Rs. 1,400 as assessed by the tribunal and the annual loss of

dependency comes to Rs. 16,800/- per annum and after applying

multiplier of 12 it comes to Rs. 2,01,600/-. Thus, the total loss of

dependency comes to Rs. 2,01,600/-. After considering Rs.

30,000/-, which is granted towards non-pecuniary damages, the

total compensation comes out as Rs. 2,31,600/-.

In view of the above discussion, the total compensation is

enhanced to Rs. 2,31,600/- from Rs. 89,200/- 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.

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

20.4.2009                                KAILASH GAMBHIR,J.