Smt.Kulbir Kaur & Ors vs Delhi Transport Corporation And ...
2009 Latest Caselaw 1640 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                 FAO No. 47/1999

                            Judgment reserved on : 17.01.2008
                            Judgment delivered on: 27.04.2009


Smt. Kulbir Kaur & Ors.                     ..... Appellants.
                    Through: Mr. O.P. Goyal, Adv.

                        versus

Delhi Transport Corporation and Anr.             ..... 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                   NO
   in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated

17.11.1998 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 2,14,000/- along with interest @

12% per annum to the claimants.

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

3. On 31.1.1990 at about 8.15 p.m. Jaspal Singh deceased was

coming driving his three wheeler scooter bearing registration No.

DBR 1678 from the side of Moti Nagar towards Raja Garden.

Joginder Singh, brother of the deceased, was waiting at the Raja

Garden bus stand for going to Chaukhandi. When he saw his

brother coming driving his three wheeler scooter, he signaled him

to stop. The deceased stopped his scooter a little ahead of the

DTC bus stand and parked his scooter on its extreme left side and

thereafter he started coming towards the bus stand. At that time

DTC bus bearing registration No. DEP 9924 of route No. 408 came

from the side of Moti Nagar and hit against Jaspal Singh deceased

from its front portion and thereafter the bus passed over him

causing his death at the place of accident itself.

4. A claim petition was filed on 11.7.1990 and an award was

passed on 17.11.1998. 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. 8,000/- to 9,000/- per month. 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 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 47 yrs of age

only and would have lived for another 20-25 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 @ 15% per annum in place of

only 12% per annum. The counsel contended that the tribunal

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 the learned counsel for the appellants and

perused the record.

8. As regards income of the deceased, Pw4 Prithpal Singh and

PW5 Raghubir Singh, three-wheeler drivers and colleagues of the

deceased deposed that the deceased used to earn Rs. 100-150/-

daily after deducting expenses for petrol and maintenance etc.

Pw6 widow of the deceased deposed that her husband was a

three-wheeler driver and used to give her Rs. 3,000/- pm for

household expenses. The appellants claimants had brought

nothing on record to prove the income of the deceased. However,

considering that no dispute in this regard is raised by the counsel

for the respondents, therefore, no interference is made in relation

to income of the deceased as assessed by the Tribunal at the rate

of Rs. 2500/- p.m. by this Court.

9. 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.

10. 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 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 book. 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 47 years and he is survived by his widow and

four 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

12 shall be applicable.

11. 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.

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

not granting adequate compensation towards loss of consortium

and loss of estate, whereas, no compensation has been granted

towards funeral expenses, loss of love & affection 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.

13. 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.

14. As regards the issue that the tribunal deposited a

percentage of the award amount in the nationalized bank, I feel

that the same does not suffer from infirmity. In Lilaben Udesing

Gohel vs. Oriental Insurance Co. Ltd. - 1996 ACJ 673 (SC)

the Hon'ble Apex Court laid broad guidelines which the Claims

Tribunal should follow while disposing of the claim applications

arising under the Motor Vehicles Act, 1939 to scotch complaints

of misapplication of compensation money and that as per those

guidelines the compensation money should be invested in a

nationalised bank as a fixed deposit and the interest thereon

should be paid directly to the claimant or his guardian, as the

case may be. Therein, the Apex Court also held as follows:

8. Before proceeding to enumerate the various grounds on which the impugned judgment is challenged, it would be proper to have a look at the guidelines laid down in the case of Muljibhai 4 . The following part of that judgment needs to be quoted for the purpose:

"6. Having regard to the fact that day in and day out thousands of rupees are paid by way of compensation to various categories of claimants, we think that before we part, we may indicate a few broad guidelines which the Claims Tribunals may follow while disposing of claim applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money:

( i ) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long-term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn;

( ii ) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in ( i ) above, but if lump sum payment is required for effecting purchases of any moveable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money; ( iii ) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at ( i ) above unless it is satisfied, for reasons to be stated in

writing, that the whole or part of the amount is required for expanding existing business or for purchasing some property as mentioned in ( ii ) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;

( iv ) In the case of literate persons also the Tribunal may resort to the procedure indicated in ( i ) above, subject to the relaxation set out in ( ii ) and ( iii ) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

( v ) In the case of widows the Claims Tribunal should invariably follow the procedure set out in ( i ) above; ( vi ) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;

( vii ) In all cases in which investment in long-term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

( viii ) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated."

This Court in the case of Union Carbide Corpn. v. Union of India 5 SCC (686) referred to the guidelines laid down in Muljibhai case 4 in laying down guidelines for disbursement of compensation to the gas victims of the well-known Bhopal disaster. The guidelines laid down in Union Carbide case 5 were in spirit quite similar to those laid down in Muljibhai case 4 . The Court, however, did not include the clause regarding literate persons' compensation also to be given the same treatment in case the Court

found it necessary to do so to protect the compensation awarded to them.

15. Therefore, the appellant can always seek withdrawal of the

said deposited amount upon proof of exigency. Therefore, no

interference is made in the award on this count.

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

comes to Rs. 2,40,000/- (2,500/-x2/3x12x12). After considering

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

the total compensation comes out as Rs. 3,50,000/-.

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

enhanced to Rs. 3,50,000/- from Rs. 2,14,000/- 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

appellants by the respondent nos. 1 & 2, who have joint and

several liability, in the same proportion as awarded by the

tribunal within 30 days of this order.

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

April 27, 2009                      KAILASH GAMBHIR, J.