R.A Sharma & Ors. vs Raj Kumar & Ors.
2009 Latest Caselaw 1507 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                       FAO No. 308/1999

                       Judgment reserved on 20.2.2008

                       Judgment delivered on: 20.4.2009


R.A. Sharma & Ors.                        ..... Appellants.
                       Through: Mr. Y.R. Sharma, Adv.

                       Versus

Raj Kumar & 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 13/4/1999

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 1,61,326/- along with interest @ 12% per

annum to the claimants.

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

3. That on 18.5.1990 Shri Dinesh Kumar (deceased) was going

to I.G.I. Airport, along with Shri Sunil Kumar on his scooter No.

DBH 2281 and when they reached near the crossing of Village

Mahipal Pur, the scooter of the deceased was proceeding towards

I.G.I Airport on Gurgaon Road, the deceased was driving his

scooter at a slow speed on its proper side who took a right turn

after giving a hand signal, at that very time a Maruti Van No. DDA

8281 driven by the respondent No. 1 in a rash and negligent

manner came from Gurgaon side i.e. opposite direction at a very

fast speed and dashed against the scooter of the deceased. With

the result, the scooter and the scooterist fell down on the road

and received serious injuries. The accident was caused due to

rash and negligent driving of respondent No. 1 when he was

driving maruti van bearing registration No. DDA 8281. That the

deceased Dinesh Kumar and the pillion rider were removed to

Safdarjung Hospital by PCR and from where Dinesh Kumar was

shifted to AIIMS, New Delhi on the same day, where he remained

admitted from 18.5.90 till his death i.e. 8.7.1990.

4. A claim petition was filed on 15/10/1990 and an award was

on 13/4/1999. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. Y.R. Sharma counsel for the appellants contended that

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

1,600/- 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. 2,400/- 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 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 23 yrs of age only and would

have lived for another 30-40 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 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 @ 18% 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 appeared for the respondents.

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

the record.

8. As regards the income, the appellant no. 1 deposed that the

deceased was of 23 years of age at the time of the accident and

was working as a photographer with Malik Studio at Mehrauli

Road, Palam Colony and was earning Rs. 2,400/- pm. He also

deposed that further the deceased used to earn Rs. 1500-2000/-

pm by using his own video camera. PW4 Sh. Ramesh Kumar

Malik, employer of the deceased had proved the salary certificate

of the deceased, Ex. PW1/A, which was issued by him and

according to it the income of the deceased was Rs. 1,200/- pm.

9. Considering that no dispute is raised by the respondents in

this regard, thus no interference is warranted.

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

is sufficient material on record to award future prospects. Both

PW 1 & PW4 had proved the same. 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 has erred in applying the multiplier of 11 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 23 years and he is survived by his aged parents

aged 51 years and 44 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 11 applied by the tribunal is already on the higher

side and same does not require any interference.

12. 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 18% 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.

13. 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. 20,000/-; compensation

towards funeral expenses is enhanced to 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.

14. 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 only 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.

15. Further, Rs. 10,000/- has been awarded by the tribunal

towards special diet and conveyance expenses and Rs. 10,000/-

towards mental pain and sufferings.

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

would come to Rs. 1800/- after doubling Rs. 1200/- to Rs. 2400/-

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

the monthly loss of dependency comes to Rs. 1200/- and the

annual loss of dependency comes to Rs. 14,400/- per annum and

after applying multiplier of 11 it comes to Rs. 1,58,400/-. Thus,

the total loss of dependency comes to Rs. 1,58,400/-. After

considering Rs. 90,000/-, which is granted towards non-pecuniary

damages and Rs. 20,000/- awarded towards special diet and

conveyance expenses and mental pain and sufferings, the total

compensation comes out as Rs. 2,68,400/-.

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

enhanced to Rs. 2,68,400/- from Rs. 1,61,326/- 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.