Amrit Sharma & Ors. vs Dtc & Ors.
2009 Latest Caselaw 1576 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

               FAO No. 123/1997

                          Judgment reserved on: 26.3.2008
                          Judgment delivered on: 27.4.2009

Amrit Sharma & Ors.                 ..... Appellants.
                  Through: Mr. O P Goyal, Adv.



                    versus

DTC & Ors.
                                   ..... Respondents
                    Through: Shri J N Aggarwal, Adv.

     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 31.1.1997

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 1,29,000/- along with interest @ 12% per

annum to the claimants.

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

3. On 3.11.88 at about 8.30 / 8.32 AM Shri Ram Sarup Sharma

was driving motorcycle bearing registration No: DHY 7805 from

his residence towards Tilak Nagar on left side of the road at a

slow pace when DTC bus bearing registration No: DEP 9778 being

driven rashly, recklessly and negligently came from behind and

hit the motorcycle with the front of the bus. Due to the impact,

the deceased fell down on the road and thereafter the wheel of

the bus passed over him causing his death at the place of

accident itself.

4. A claim petition was filed on 16.3.1989 and an award was

passed on 31.1.97. 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 has erred in assessing the income of the deceased at Rs.

2535/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income at a higher rate. The counsel submitted that the tribunal

has erroneously applied the multiplier of 5 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 49 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 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 @ 12% per annum in place of only 15% 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. The counsel has relied on following judgments

in support of his contentions:

6. Shri J N Aggarwal, Advocate has appeared on behalf

respondents. He submitted that the award passed by the ld.

Tribunal is just and fair and requires no interference by this court.

He also urged that the appellants are not dependents on the

deceased thus no compensation should be awarded.

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

perused the record.

8. As regards the contention that the appellants are not

dependants on the deceased and thus cannot claim

compensation, in this regard in a decision of the Ap.ex Court in

Manjuri Bera vs Oriental Insurance Co. Ltd. (2007) 10 SCC

643 the Court explained the difference between "dependants"

and "legal representatives and held that LR of deceased can

claim compensation under Motor Vehicles Act. The relevant para

of the said judgment is as under:-

"12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique1 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai2 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.

13. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.

15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability

flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent."

9. Therefore, the appellants can claim compensation.

10. PW 3 M.C. Pundir proved the salary of the deceased at Rs.

2535/-. After considering this, I am of the view that the tribunal

has not erred in assessing the income of the deceased at

Rs.2500/- duly proved on record.

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

the deceased by this court.

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

was sufficient material on record to award future prospects.

Therefore, the tribunal committed no error in granting future

prospects in the facts and circumstances of the case.

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

that the 1/3 deduction made by the tribunal are on the higher

side as the deceased is survived by widow and aged mother. In

catena of cases the Apex Court has in similar circumstances

made 1/3rd deductions. Therefore, I am not inclined to interfere

with the award on this ground.

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

that the tribunal has erred in applying the multiplier of 5 in the

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

committed error. This case pertains to the year 1988 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 the accident deceased

was of 49 years of age and is survived by his widow and 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 12 should have been applied. Therefore, the award is

modified in this regard.

15. 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.

16. 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. 10,000/- 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.

17. 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.

18. Therefore, the total loss of dependency comes to Rs.

3,12,000/- (3250 x 2/3 x 12 x 12).

19. After considering Rs. 80,000/- which is granted towards non-

pecuniary damages, the total compensation comes out as Rs.

3,92,000/-.

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

enhanced to Rs. 3,92,000/- from Rs. 1,29,000/- with interest on

the differential amount @ 7.5% per annum from the date of filing

of the petition till realisation and the same shall be paid to the

appellant by the respondent insurance company with 80% to be

awarded to the widow of the deceased and 20% to the mother of

the deceased within 30 days of this order.

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

of.

27th April, 2009               KAILASH GAMBHIR, J.