Smt.Preetam Devi Asija & Ors. vs Munish Khurana & Ors.
2009 Latest Caselaw 1502 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                       FAO No. 415/1999

                       Judgment reserved on 2.4.2008

                       Judgment delivered on: 20.4.2009


Smt. Preetam Devi Asija & Ors.            ..... Appellants.
                   Through: Mr.O.P. Goyal, Adv.

                       Versus

Munish Khurana & 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 19/5/1999

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 3,12,000/- along with interest @ 12% per

annum to the claimants.

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

3. On 2.12.1990 the deceased was going on his threewheeler

scooter, the respondent No. 1 came driving his Maruti car bearing

registration No. DEG 5216 from North Avenue side in a rash and

negligent manner and hit the scooter and caused fatal injuries to

Jagdish Asija and he succumbed to his injuries.

4. A claim petition was filed on 7/1/1991 and an award was

passed on 19/5/1999. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

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

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

3,000/- 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. 6,000/- 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 widow,

aged mother and three children. The counsel submitted that the

tribunal has erroneously applied the multiplier of 13 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 40 yrs of age only and would

have lived for another 20-25 years 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 @ 15% 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 has been appearing for the respondents.

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

the record.

8. As regards income, the widow of the deceased deposed that

the deceased was earning Rs. 3,000/- pm from his job as a three

wheeler scooter driver. Nothing was brought on record to prove

the income of the deceased except the bald assertions. After

considering all these factors. The Tribunal assessed the income of

the deceased at Rs. 3,000/- pm.

9. However, 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.

10. 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.

11. 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 widow, aged mother and

three children. In the facts of the instant case, I feel that the

interest of justice would be best served if ¼ deductions is made

herein. Therefore, I am inclined to interfere with the award on this

ground and modify the award by deducting 1/4 towards personal

expenses of the deceased.

12. 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 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 age of the deceased at the time of

the accident was 40 years and he is survived by his widow, aged

mother 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 13 has been rightly applied by the tribunal.

13. 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 15% 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.

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

not granting compensation towards loss of love & affection,

funeral expenses, loss of estate, 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 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.

16. On the basis of the discussion, the total loss of dependency

comes to Rs. 3,51,000/- (3,000/- x ¾ x 12x 13). After considering

Rs. 1,10,000/-, which is granted towards non-pecuniary damages,

the total compensation comes out as Rs. 4,61,000/-.

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

enhanced to Rs. 4,61,000/- from Rs. 3,12,000/- 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.

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

20.4.2009                              KAILASH GAMBHIR,J.