Smt.Poonam Gupta & Others vs Sh George Parera Kados & Others
2009 Latest Caselaw 1496 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            FAO 212/1999

            Judgment reserved on: March 05,2008
            Judgment delivered on: 20.4.2009


Smt. Poonam Gupta & Others                   ..... Appellants.

            Through: Mr. D.K. Sharma, Advocate

                        Versus

Sh. George Parera Kados & Others               ..... Respondents


                   Through: Mr. S.S. Panwar, Advocate for R-3.

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 2.1.1999

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 5,05,240/- along with interest @ 12% per

annum to the claimants.

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

3. On 29th December, 1994 Vijay Kumar Gupta along with his

wife and two sons, Anil Kukreja, his wife Smt. Rashi Kukreja,

Rakesh Jain and his daughter etc. were coming from the side of

Goa and going to Bombay in maruti van bearing No. GA-01-C-

4122. This van was being driven by George Parera Kados,

respondent No.1 in a rash and negligent manner and without

caring for the traffic rules. The moment this van reached near a

place at Bridge situated at village Mhwale on the Bombay-Goa

Highway, the driver (respondent No.1) could not control the van

with the result it collided with the side stone wall of the bridge

and jumped from the top of the bridge and collided with the

stones lying 30 feet below the bridge. As a result of this

accident, Vijay Kumar Gupta sustained fatal injuries and died at

the spot. The other occupants of the van including Poonam

Gupta, petitioner No.1 received injuries. It is alleged by the

appellant that this accident occurred due to the sole rash and

negligent driving of the driver/R1 who was responsible for the

accident. Hence the petition for Rs.30,00,000/- claim was moved

by the Learned Tribunal on account of the death of Vijay Kumar

Gupta and for a sum of Rs.2,00,000/- on account of injuries

sustained by Smt. Poonam Gupta, wife of the deceased.

Initially two separate petitions under separate registration

numbers were filed against the driver and owner respectively of

the van but later on they both were consolidated by the learned

Tribunal. Since the offending van was insured with M/s United

India Insurance Company Ltd., it was also made the

party/respondent in the petitions. Respondent Nos. 1 and 2 did

not contest the petitions and were proceeded with ex-parte. The

United India Insurance Company admitted that the vehicle was

insured with it at the time of the accident but denied their

responsibility to pay compensation.

4. The claim petition was filed on 27.11.1995 and an award

was passed on 2.1.1999 by the Learned Tribunal. Aggrieved with

the said award enhancement is claimed by way of the present

appeal.

5. Sh. Neeraj Sharma, counsel for the appellants contended

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

Rs.6000/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the deceased after considering future prospects at Rs.

17,500/- per month. The counsel submitted that the tribunal

erroneously applied the multiplier of 12 while computing

compensation when according to the facts and circumstances of

the case multiplier of 14 or 13 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 36 yrs of age only and would have lived

for another 20-30 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 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. Per Contra Mr. S.S. Panwar, counsel for respondent

insurance company submitted that there is no illegality in the

impugned award. Counsel further contended that award passed

by Tribunal is absolutely fair, just and reasonable and no fault can

be found with the same.

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

the record.

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

appellants is that the deceased was doing his own business in the

name and style of M/s Viya Stationary Mart and was having a

monthly income of Rs. 17,500/- p.m. PW1 Mrs. Poona Gupta

deposed that the deceased used to earn about Rs. 20,000/- p.m.

from his stationary business and to prove the same brought on

record the original assessment order Ex PW 1/1 and also tax

returns for the assessment year 1993-94; 1994-95 and 1995 to

1996. The Tribunal after considering these documents assessed

income at Rs. 6,000/- p.m. and further deducted Rs. 1,000/- p.m.

towards income tax. I do not feel that the Tribunal erred in

assessing the income of the deceased at Rs. 5,000/- p.m.

9. Therefore, no interference is made in relation to income of

the deceased by this court.

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

is sufficient material on record to award future prospects. The

income tax returns of the year 1993-94, 1994-95 and 1995-96

clearly show steady rise in the income of the deceased.

Therefore, the tribunal committed error in not granting future

prospects in the facts and circumstances of the case.

11. 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 December, 1994

and at that time II schedule to the Motor Vehicles Act was

already brought on the statute book. 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 to the Motor Vehicles Act.

Therefore, in the facts of the instant case the multiplier of 16

shall be applicable.

12. 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 awarded at Rs. 40,000/- compensation

towards funeral expenses is awarded at 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 and

the Tribunal has already awarded Rs. 25,000/- for transportation

of dead body of the deceased to Delhi from Bombay.

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

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

10,000/- and after taking the mean of them. After making 1/3 rd

deductions the monthly loss of dependency comes to Rs. 5,000/-

and the annual loss of dependency comes to Rs. 60,000/- per

annum and after applying multiplier of 16 it comes to Rs.

9,60,000/- Thus, the total loss of dependency comes to Rs.

9,60,000/-. After considering Rs. 1,35,000/- which is granted

towards non-pecuniary damages, the total compensation comes

out as Rs. 10,95,000/-.

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

enhanced to Rs. 10,95,000/- from Rs. 5,05,240/- 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.

15. With the above directions, the present appeal is disposed

of.

20.4.2009                            KAILASH GAMBHIR J.