Bhateri Devi & Ors. vs Ranbir Singh & Ors.
2009 Latest Caselaw 1664 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                      FAO 182/1998


                           Judgment reserved on: 26.2.2008
                           Judgment delivered on: 27.4. 2009


Bhateri Devi & Ors.                     ..... Appellants.
                      Through: Mr. Rupesh Kumar, Adv.



                      versus

Ranbir Singh & Ors.
                                    ..... Respondents
                      Through: Mr. P.K. Seth, 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 11/03/98

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 33,120/- along with interest @ 12% per

annum to the claimants.

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

3. On 11/04/81 at about 2.40 PM, Nand Kishore was travelling

in Bus bearing registration No. DEP-2824 plying on route No. 928.

The bus had stopped at a bus stand near Haryana Power House in

order to allow some passengers to alight from the same. While,

Nand Kishore, deceased was in the process of getting down from

the bus from its front gate when R-1, the driver of the bus

suddenly, without giving any warning or indication, moved the

bus with jerk at a fast speed. As a result, Nand Kishore fell down

and was run over under the wheels of the bus and died on the

spot.

4. A claim petition was filed on 07/07/1981 and an award was

passed on 11/03/1998. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. Rupesh Kumar, counsel for the appellants contended

that the tribunal has erred in assessing the income of the

deceased at Rs. 345/- 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. 2,000/- per month.

The counsel submitted that the tribunal has erroneously applied

the multiplier of 12. 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 40 years 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. As

regards liability of the insurance company, he contended that

although, the offending vehicle was insured with the respondent

no. 3 insurance company but still the insurance company alone is

not liable to pay in this case as DTC admitted in its written

statement that the said bus was running under the operation of

the DTC bus but later denied it and submitted that an agreement

was executed between DTC and the owner of the bus that he

would take the insurance policy covering third party risk. He

urged that since the vehicle was plying under permit by the

corporation, therefore, the DTC should be taken as its owner. He

further contended that in issue no. 4, whether respondent no. 4

DTC is not liable in view of the preliminary objections, the Ld.

Tribunal in unequivocal terms held that since the said issue was

not pressed by the respondents thus, it is decided against them.

The counsel maintained that therefore, even respondent no. 4

DTC is also liable to pay herein. 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, 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. Mr. P. K. Seth counsel for the respondent insurance

company contended that the award passed by the Ld. Tribunal is

just and fair and does not require any interference by this court.

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

the record.

8. As regards the income of the deceased, in the claim petition

the case of the appellants was that the deceased was a

shopkeeper and was dealing in bardana/gunny bags and was

earning Rs. 2,000/-pm. PW6 R.K. Garg, the brother-in-law of the

deceased deposed that the income of the deceased was not more

than 400-500/- pm. PW 17 Bhateri Devi deposed that the

deceased used to earn Rs. 3,000/-pm and out of it Rs. 1,500/-

was given to her towards household expenses. The appellants

claimants had not brought on record any document showing the

income of the deceased. 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. 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. After considering all these factors, I am of the view that the

tribunal has not erred in assessing the income of the deceased at

Rs 345/- pm by taking aid of minimum rates of wages notified

under MW Act. Therefore, no interference is made in relation to

income of the deceased 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.

10. However, 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. For instance, minimum wages of skilled labourers

as on 1.1.1980 was Rs. 320/- per month and same rose to Rs.

1,083/- per month in the year 1990. Meaning thereby, from year

1980 to year 1990, there has been an increase of nearly 238% in

the minimum wages. Thus, it could safely be assumed that

income of the deceased would have doubled in the next 10 years.

11. Therefore, the tribunal erred in not considering the same.

Thus, the award is modified to this extent in this regard.

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

that the tribunal has erred in applying the multiplier of 12 in the

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

committed error. This case pertains to the year 1981 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. At the time of the accident, the

deceased was of 40 yrs of age and he is survived by his widow

and five 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 14 shall be applicable.

13. 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.

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

not granting adequate compensation towards non-pecuniary

damages, I feel that the same needs some consideration. In this

regard compensation towards loss of love and affection is

awarded at Rs. 50,000/-; compensation towards funeral expenses

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

estate is awarded at Rs. 10,000/-. Rs. 50,000/- is awarded

towards loss of consortium.

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 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.

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

dependency comes to Rs. 57,960/- (345+2x345/2 x 2/3 x 12 x 14)

and after considering Rs. 1,20,000/-, which is granted towards

non-pecuniary damages, the total compensation comes out as

Rs. 1,77,960/-.

17. As regards liability of DTC, rightly, in issue no. 4, whether

respondent no. 4 DTC is not liable in view of the preliminary

objections, the Ld. Tribunal in unequivocal terms held that since

the said issue was not pressed by the respondents thus, it is

decided against them. Herein, the respondents did not include

DTC. As it was the DTC which took this preliminary objection. Be

that as it may, as per S. 102, Indian Evidence Act, the burden of

proof in a suit or proceeding lies on that person who would fail if

no evidence at all were given on either side. Also considering the

agreement entered into between respondent nos. 2 and 4 it is

clear that the DTC is not liable to compensate in this case.

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

enhanced to Rs. 1,77,960/- from Rs. 33,120/- 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 to 3, jointly and severally

liable to the extent mentioned by the tribunal in the award, in the

same proportion as awarded by the tribunal within 30 days of this

order.

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

of.

April 27, 2009                         KAILASH GAMBHIR, J.