Ram Mehar Singh vs The New India Assurance Ltd. & Ors.
2009 Latest Caselaw 1510 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI


              FAO APP No. 360/2000

                       Judgment reserved on 19.3.2008

                       Judgment delivered on: 20.4.2009.


Ram Mehar Singh                             ..... Appellant.

              Through: Mr.Sureh Sharma, Advocate.

                       Versus

The New India Assurance Ltd. & Ors.         ..... Respondents

Through: Mr. Kanwal Chaudhary, 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 6.6.2000

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 2,26,000/- along with interest @ 12% per

annum to the claimants.

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

3. On 11.7.94, the deceased Shri Vipin Kumar was going to

sell milk on his bicycle loaded with milk canes. At about 6 A.M.

when he was near red light on Gajipur, near Kalyanpuri, a half

body truck bearing registration no. DBG-1620 being driven in a

rash and negligent manner hit the cycle of Shri Vipin Kumar,as a

result of which Shri Vipin Kumar sustained fatal injuries.

4. A claim petition was filed on 19.8.94 and an award was

passed on 6.6.2000. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

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

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

Rs. 1977/- 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. 3,500/-per month as the deceased

was into the business of selling milk The counsel submitted that

the tribunal erroneously applied the multiplier of 9 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 he was of 16 yrs of age only and would

have lived for another 60 yrs had he not met with the accident.

The counsel also submitted that had the deceased not met with

his untimely death he would have expanded his business and

would have been earning much more in the near future. 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 estate and loss of service which

were being rendered by the deceased to the appellants. The

amount awarded towards funeral expenses and loss of love and

affection is on the lower side, contended counsel for the

appellant.

6. Per contra, Mr.Kanwal Chaudhary counsel for the

respondent submitted that the appellants are not entitled to any

further amount of compensation over and above the amount

already granted by the Tribunal. The counsel also contended that

for claiming any increase of income in the future, cogent and

sufficient grounds/reasons have to be disclosed by the claimants

and in the absence of the same, future increase cannot be taken

into account for determining loss of financial dependence.

Counsel for the respondent further contended that even in the

absence of any evidence placed by the appellants with regard to

the future loss of income no further enhancement can be claimed

by the counsel for the appellants. Counsel for the respondent

thus submits that this Court may not interfere in the

compensation amount awarded by the Tribunal, which cannot be

considered either as unjust or unfair

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

the record.

8. As regards the income of the deceased nothing has been

brought on record to prove that the deceased was into selling

business of milk and was earning Rs.3,500/- p.m. through it as is

claimed by the appellants.

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 thumb rule is that in the absence of clear and cogent

evidence pertaining to income of the deceased learned Tribunal

should determine income of the deceased on the basis of the

minimum wages notified under the Minimum Wages Act. The

Tribunal following the said principle assessed the income of the

deceased in accordance with the MW Act at Rs. 1977 p.m.

Therefore, no interference is made in relation to income of the

deceased by this court.

11. Further, It has been the consistent view of this court that

whenever aid of Minimum Wages Act is taken while computing

income, then increase in minimum wages should also be

considered. It is well settled that future prospects are not akin to

increase in minimum wages. To neutralize increase in cost of

living and price index, the minimum wages are increased from

time to time. A perusal of the minimum wages notified under the

Minimum Wages Act show that to neutralize increase in inflation

and cost of living, minimum wages virtually double after every 10

years. Thus, it could safely be assumed that income of the

deceased would have doubled in the next 10 years.

12. It is evident from the award that the tribunal assessed

compensation considering future increase in income of the

deceased. Therefore, the tribunal committed no error, while

assessing the income of the deceased while computing

compensation towards loss of dependency and assessed it at Rs.

2965.50.

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

that the tribunal has erred in applying the multiplier of 9 in the

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

committed error. This case pertains to the year 1994 and at that

time II schedule to the Motor Vehicles Act had already been

brought on the statute books. The age of the deceased at the

time of the accident was 13 years and age of the father of the

deceased at that time was 52 years. It is no more res integra

that multiplier is chosen considering the age of the deceased or

the claimants, whichever is higher. 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 11 should have

been applied as per the II Schedule of M.V. Act. Thus, the

Tribunal erred in applying the multiplier of 9 in the facts and

circumstances of the present case and multiplier of 11 shall be

applicable.

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

not granting adequate compensation towards loss of love &

affection and funeral expenses and no compensation has been

granted towards 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

enhanced to Rs.20,000/- from Rs.10,000/-; compensation towards

funeral expenses is enhanced to Rs.10,000/- from Rs.2,000/- and

compensation towards loss of estate is awarded at Rs.10,000/-

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 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.

16. In view of the above discussion, the total loss of

dependency comes to Rs.2,60,964/- (2965.50 x 2/3 x 12 x 11).

After considering Rs. 40,000/- which is granted towards non

pecuniary damages. The total compensation comes out as Rs.

3,00,964/-.

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

enhanced to Rs.3,00,964/- from Rs. 2,26,000/- 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 in

equal proportion by the respondent insurance company.

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

of.

20.4.2009                                  KAILASH GAMBHIR J.