Ms.Shireen Vishwanathan & Ors. vs Sh Ramakant Gajanan Mohare & Ors.
2009 Latest Caselaw 1678 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO No. 193/2002


%                    Judgment reserved on: 9.4.2008
                     Judgment delivered on: 27.4.2009


Ms. Shireen Vishwanathan & Ors.        ......Appellants
                    Through: Mr. Raju Dudani, Adv.

               versus


Sh. Ramakant Gajanan Mohare & Ors.           ..... Respondents
                   Through: Mr. Pankaj 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

12/12/2001 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 14,29,000/- along with interest @

9% per annum to the claimants.


FAO NO. 193/2002                                          Page 1 of 8
 2.   The brief conspectus of the facts is as follows:


3.   Late Major C.M. Vishwanathan was the team leader of the

Ordinance Overland Himex Motor Cycle Rally sponsored by Hero

Honda Motors Ltd.      The rally was flagged off from Delhi on

04/11/95. On 15/11/95, the rally team left Kohlapur at about 7.30

a.m on its way to Panji (Goa). It was proceeding on National

Highway No. 17 and was moving at a modest speed of 40 km per

hour on the proper side of the road. In the meanwhile, a Mahindra

Jeep bearing registration No. MH-03-H-439 being driven in a rash

and negligent manner by the respondent No.1 came from the

opposite direction. It was being driven at a very fast speed and in

a zig zag manner. It dashed against the motor cycle driven by

Major C.M Vishwanathan. The impact was so severe that Major

C.M. Vishwanathan was flung in the air, and was then thrown on

the left side of the road. He started bleeding profusely from the

injury suffered by him and suffered fracture of right femur, right

tibia, pelvis, apart from injuries on various parts of the body. He

was removed to nearest Rural Hospital in Kankavali and was then

air lifted to Panji. Major C.M. Vishwanathan could not survive the




FAO NO. 193/2002                                           Page 2 of 8
 injuries and was declared brought dead in Military Hospital, Panji,

Goa.


4.     A claim petition was filed on 06/12/96 and an award was

passed    on   12/12/2001.   Aggrieved   with   the   said   award

enhancement is claimed by way of the present appeal.


5.     Sh. Raju Dudani counsel for the appellants contended that

the tribunal erred in assessing the income of the deceased at Rs.

15,390/- 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. 22,000/- per month after

considering future prospects. 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 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 36 years of age only and would

have lived for another 30 yrs had he not met with the accident.

The counsel also stated that had the deceased not met with his
FAO NO. 193/2002                                             Page 3 of 8
 untimely death he would have expanded his business and would

have been earning much more in the near future. 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 @ 12% per

annum in place of only 9% 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.   Per Contra Mr. Pankaj Seth, counsel for respondent insurance

company submitted that there is no illegality in the impugned

award. Counsel further contended that award passed by Tribunal

is absolutely fair, just and reasonable and no fault can be found

with the same.

FAO NO. 193/2002                                             Page 4 of 8
 7.    I have heard the learned counsel for the parties and perused

the record.


8.    Learned Tribunal has assessed the income of the deceased

on a sound reasoning, after taking into account the settled law,

therefore, there is no ground to interference in the same.


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

tribunal   has   assessed   the   income    of    the   deceased   after

considering future prospects, considering that he was in a

government service and over a period of time would have earned

higher salary had he not met with the accident. Therefore, no

interference in this regard is also called for.


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

that the tribunal erred in applying the multiplier of 13 in the facts

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

committed error. This case pertains to the year 1995 and at that

time II schedule to the Motor Vehicles Act had already been

brought on the statute book. The age of the deceased at the time

of the accident was 36 yrs and he is survived by his widow and

aged mother. In the facts of the present case, I am of the view that

FAO NO. 193/2002                                               Page 5 of 8
 after looking at the age of the claimants and the deceased and

after considering the multiplier applicable as per the II Schedule to

the MV Act, the multiplier of 16 shall be applicable.

11.     As regards the issue of interest that the rate of interest of 9%

p.a. awarded by the tribunal is on the lower side and the same

should be enhanced to 12% p.a., I feel that the rate of interest

awarded by the tribunal is not 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 @ 9% pa by the tribunal and the same is not interfered

with.


FAO NO. 193/2002                                                Page 6 of 8
 12.   On the contention regarding that the tribunal has erred in not

granting adequate compensation towards loss of love & affection,

funeral expenses and loss of estate, whereas, no compensation

has been granted towards 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.




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

comes to Rs. 17,28,000/- (9,000 x 12 x 16). After considering Rs.

80,000/-, which is granted towards non-pecuniary damages, the

total compensation comes out as Rs. 18,08,000/-.




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

enhanced to Rs. 18,08,000/- from Rs. 14,29,000/- with interest on

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

FAO NO. 193/2002                                            Page 7 of 8
 of the petition till realisation and the same shall be paid to the

appellants by the respondent insurance company in the same

proportion as awarded by the tribunal within 30 days of this order.



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




April 27, 2009                   KAILASH GAMBHIR, J.