Smt Ram Kali & Ors. vs Oriental Insurance Co. Ltd.
2009 Latest Caselaw 1497 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                  FAO No. 85/1999

                           Judgment reserved on: 2.4.2008
                           Judgment delivered on: 20.4.2009

Smt. Ram Kali & Ors.                  ..... Appellants.
                   Through: Ms. Saroj Bidawat, Adv.



                       versus

Oriental Insurance Co.Ltd.    ..... 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

27.10.1998 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 2,32,000/- along with interest @

12% per annum to the claimants.

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

3. On 28.3.1990 at about 4.15 PM deceased Om Prakash hired

a Tempo bearing registration No: DDL 5341 at Tilak Nagar for

carriage of four bags of flour from Tilak Nagar to Najafgarh. Om

Prakash was travelling in the Tempo along with the goods. The

said tempo was being driven in a rash and negligent manner by

respondent No. 1. When the tempo reached a place near Mohan

Garden on the Najafgarh Road, the tempo went off the road and

struck against a Neem Tree. As a result of the impact, Om

Prakash received grievous injuires to which he succumbed later

on.

4. A claim petition was filed on 18.5.1990 and an award was

made on 27.10.1998. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Ms. Saroj Bidawat, counsel for the appellants contended

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

Rs. 1933/- 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. 3866/- 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,

three minor children and aged mother. The counsel submitted

that the tribunal has erroneously applied the multiplier of 10

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 44 yrs of age only and would

have lived for another 20-30 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 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.

6. Nobody has been appearing for the respondents.

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

the record.

8. As regards the income of the deceased, PW1 Shri S.N.

Uppal, UDC deposed that the deceased was working as a pump

operator with the office of Executive Engineer, Ramjas Tank,

Bapa Naghar and was drawing a salry of Rs. 1933/- p.m.

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

tribunal has not erred in assessing the income of the deceased at

Rs. 1933/- p.m. as duly proved on record by PW1.

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

the deceased by this court.

11. As regards the future prospects I am of the view that the

Tribunal has already considered future prospects of the deceased

and assed the income at Rs. 2900/-. Therefore, no interference is

made in the award in the facts and circumstances of the case.

12. 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 wife, three children and

mother. Considering the facts of the present case, I am inclined

to interfere with the award on this ground and modify the award

by deducting 1/4th expenses towards personal expenses of the

deceased.

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

that the tribunal has erred in applying the multiplier of 10 in the

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

committed no 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 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 deceased was of 44 years at the

time of the accident and is survivied by his widow, 3 children and

an aged mother. 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 10 has been rightly applied by the Tribunal.

14. On the contention regarding that the tribunal erred in not

granting compensation towards loss of love & affection, funeral

expenses, loss of estate 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 awarded

at Rs. 10,000/-. Further, Rs. 50,000-/ is awarded towards loss of

consortium.

15. 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, compensation

towards loss of dependency comes to Rs. 2,61,000/- (2900 x ¾ x

12 x 10).

16. After considering Rs. 1,10,000/-, which is granted towards,

the total compensation comes out as Rs. 3,71,000/-.

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

enhanced to Rs. 3,71,000/- from Rs. 2,32,000/- 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 in the same proportion as awarded by the Tribunal.

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

20.4.2009                                 KAILASH GAMBHIR, J.