Sh Surendra Behari Lal vs Sh Sri Ram & Ors.
2009 Latest Caselaw 1503 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI


                      FAO No. 329/98

                      Judgment reserved on: 5.2.2008

                      Judgment delivered on: 20.4.2009.


Sh.Surendra Behari Lal                        ..... Appellant.

                      Through: Mr.V.P.Chaudhary,Sr.Advocate
                      with Mr. Nitinjya Chaudhary,Advocates.

      Versus

Shri Sri Ram & Ors.                 ..... Respondents

Through: Mr. Mohan Babu Aggarwal, Advocate.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?                            No

2.    To be referred to Reporter or not?                         No

3.    Whether the judgment should be reported                    No
      in the Digest?


KAILASH GAMBHIR, J. :

1. The present appeal arises out of the award dated 17.4.98 of the

Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of

Rs. 1,45,000/- along with interest @ 12% per annum to the claimants.

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

3. On 16.10.91 the deceased Smt. Lalit Bala alongwith her husband

was proceeding to Greater Kailash-I, New Delhi from their residence at

Shalimar Bagh, Delhi, riding on the pillion seat of two wheeler scooter.

When they reached Khyber Pass, Civil Lines, Delhi, a truck bearing

registration no.DHL-5324 being driven by its driver in a rash and

negligent manner hit the said scooter, as a result of which Smt. Lalit

Bala fell on the road and was crushed under the left wheels of the said

truck, resulting in her death on the spot.

4. A claim petition was filed on 10.4.92 and an award was passed on

17.4.98. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Shri V.P. Chaudhary, Sr. Advocate appearing for the appellants

contended that the tribunal has erred in assessing the income of the

deceased at Rs. 1500/- per annum whereas after looking at the facts

and circumstances of the case the tribunal should have assessed the

income of the deceased at Rs. 10,000/- per month. The counsel further

maintained that the tribunal erred in making the deduction to the tune

of 50% of the income of the deceased towards personal expenses. 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 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 she was of 48 yrs of age only. The counsel also stated that

had the deceased not met with her untimely death she would have

been earning much more in the near future. 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 @ 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, 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. Shri Mohan Babu Aggarwal counsel for the respondents

contended that the award passed by the Tribunal is just and fair and

does not require interference by this Court.

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

record.

8. As regards the income of the deceased the appellant no. 1

testified as PW3 that his wife was working as a professor in Kanpur

College since 1967 & also that she was on long leave without salary.

He stated that in 1983 she was drawing basic salary of Rs.1800/- pm

and since then the scale has been revise & she would have been

drawing Rs.14,000/- pm, now, i.e. at the time of deposition in the year

1996, had she not met with an accident. He further deposed that she

was double M.A. with P.Hd in Music and was earning about Rs.3500/-

p.m. from private music classes. He also stated in his deposition that

she had applied for the job of Reader in Delhi University and was

expecting appointment. He admitted that he does not have any salary

slip from her employment at College at Kanpur & he also admitted that

Delhi University had not issued any appointment letter. He also did

not brought any corroborative material to prove her earnings from

private music classes. He also admitted that the deceased was not an

income tax assessee.

9. 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 Tribunal in the absence of any cogent reasons regarding the

income of the deceased assessed the income at Rs. 15,000/- p.m. as

per the II Schedule to the Motor Vehicles Act. I do not feel inclined to

interfere with the income of the deceased in this regard.

11. The Tribunal assessed the income of the deceased at Rs.15000/-

p.a. and doubled the same while considering rise in price index and

inflationary trends and then took their mean and assessed the income

at Rs. 22,500/- p.a. I do not feel there is any infirmity in the award in

this regard and the award is not interfered in this regard.

12. As regards the contention of the counsel for the appellant that

the 50% deduction made by the tribunal are on the higher side as the

deceased is survived by his husband and two minor daughters. I feel

that the Tribunal has committed error. In catena of cases the Apex

Court has in similar circumstances made 1/3rd deductions. Therefore, I

am inclined to interfere with the award on this ground. The deduction

to the tune of 1/3rd is made towards personal expenses.

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 1991 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. At the time of accident, the

deceased was aged 48 years and the appellant no.1 was 50 years of

age and her minor daughters were aged 8 years and 6 years old at the

time of filing of the petition. 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 and

then taking a balanced view the multiplier of 11 is applicable.

14. 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, change of economy, 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.

15. The other contention of the counsel for the appellant is that the

tribunal has erred in not granting adequate compensation towards loss

of love & affection, loss of consortium, loss of estate and funeral

expenses. In this regard compensation towards loss of consortium and

loss of love and affection is enhanced to Rs. 70,000/- from Rs.15,000/-

and compensation towards loss of estate is not interfered with as

Rs.15,000/- under this head is just and fair. Further, Rs. 10,000/- is

awarded towards funeral expenses instead of Rs.2,000/-.

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 his wife 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.

17. On the basis of the discussion, the income of the deceased would

come to Rs. 22,500/- after doubling Rs.15,000/- to Rs. 30,000/- and

after taking the mean of them. After making 1/3rd deductions the

annual loss of dependency comes to Rs. 15,000/- per annum and after

applying multiplier of 11 it comes to Rs. 1,65,000/- Thus, the total loss

of dependency comes to Rs. 1,65,000/- After considering Rs. 95,000/-

which is granted towards non-pecuniary damages.

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

enhanced to Rs. 2,60,000/- from Rs.1,45,000/- 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.

19. With the above directions, the present appeal is disposed of.

20.4.2009                                   KAILASH GAMBHIR J.
mg