Usha Kaushik & Ors. vs Pramod Kumar & Ors.
2009 Latest Caselaw 1665 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                FAO No. 26/1999

                            Judgment reserved on :1.4.2008
                            Judgment delivered on: 27.4.2009

Smt. Usha Kaushik & Ors.              ..... Appellants.
                   Through: Mr. O.P. Goyal, Adv.

                      versus

Pramod Kumar & Ors.          ..... Respondents
                 Through: Nemo.

     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 17/8/1998

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 6,24,000/- along with interest @ 12% per

annum to the claimants.

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

3. That on 17.9.88 at about 6.30 p.m. Shri Anoop Kumar

Kaushik was going driving his two wheeler scooter No. DEQ 587

from his office towards his residence via Dhaula Quan round

about at a slow speed and on his correct side of the road and

when he was about to enter the Ridge Road at that time bus

bearing registration No. DEP 6172 driven rashly and negligently

by respondent No. 1 came from behind and hit the scooter of the

deceased with the front of the bus causing the deceased fatal

injuries.

4. A claim petition was filed on 1/2/1989 and an award was

passed on 17/8/1998. 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.

5,500/- 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. 7,000/- per month. The counsel

further maintained that the tribunal erred in making the

deduction to the tune of Rs. 1,500/- pm of the income of the

deceased towards personal expenses when the deceased was

supporting a large family at the time of accident and is survived

by his widow, aged parents and two children. The counsel

submitted that the tribunal has erroneously applied the multiplier

of 13 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 39 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 a 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

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 has been appearing for the respondents.

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

perused the record.

8. As regards the income of the deceased, PW5 deposed that

her husband was working as Asst. Manager at New Bank of India,

Vasant Vihar and was getting Rs. 400-500/- pm over and above

the salary of Rs. 5,000/- pm. And out of it, he used to give Rs.

2,500-3,000/- pm towards household expenses. Sh. Rajinder

Rastogi, clerk of Punjab National Bank deposed that the deceased

was working with PNB and was earning Rs. 4313pm as salary

apart from other perks. The said witness also deposed that the

deceased had good chances of promotion and thus would have

been earning salary drawn by a Sr. Manager had he not met with

the accident. After considering all these factors, I am of the view

that the tribunal has erred in assuming the income of the

deceased at Rs. 5,500/- pm in the absence of there being any

cogent evidence in this regard and ought to have assessed the

same at Rs.4,313/- pm as duly proved by Sh. Rajinder Rastogi,

clerk of Punjab National Bank. Though the Tribunal has taken into

account the future prospects, but the formula applied by the

Tribunal is bereft of any sound reasoning.

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

is sufficient material on record to award future prospects and the

tribunal erred in not considering the same. Sh. Rajinder Rastogi,

clerk of Punjab National Bank deposed that the deceased had

good chances of promotion and thus would have been earning

salary drawn by a Sr. Manager had he not met with the accident.

Therefore, the tribunal committed error in not granting future

prospects in the facts and circumstances of the case and the

same are awarded herein.

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

that the deduction to the tune of Rs. 1,500/- pm made by the

tribunal are on the higher side as the deceased is survived by his

widow, aged parents and two children. The tribunal applied unit

method and accordingly assessed that the deceased must have

been spending atleast Rs. 1500/- towards personal expenses. I do

not feel that the same warrants interference by this court.

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

that the tribunal erred in applying the multiplier of 15 in the facts

and circumstances of the case, I feel that the tribunal has not

committed any 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. The age of the deceased at the time of

the accident was 39 years and he is survived by his widow, aged

parents and two 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 13 has been rightly applied by the tribunal.

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 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.

13. 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.

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 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.

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

would come to Rs. 6469.50 after doubling Rs.4313.50 to Rs.

8627/- and after taking the mean of them. After making

deductions to the tune of Rs. 1,500/- as assessed by the tribunal,

the monthly loss of dependency comes to Rs.4969.50 and the

annual loss of dependency comes to Rs.59634/- per annum and

after applying multiplier of 13 it comes to Rs. 7,75,242/-. Thus,

the total loss of dependency comes to Rs. 7,75,242/-. After

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

pecuniary damages, the total compensation comes out as Rs.

8,85,242/-.

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

enhanced to Rs.8,85,242/- from Rs. 6,24,000/- 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 respondents jointly and severally in the same

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

order.

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

of.

April 27, 2009                        KAILASH GAMBHIR, J.