Sarla Tulsian vs New India Insurance Co.Ltd.
2009 Latest Caselaw 1679 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI



                               FAO No. 113/1998


                         Judgment reserved on : 2.4.2008

                         Judgment delivered on: 27.4.2009



SARLA TULSIAN                                       ..... Appellants.
                         Through:       Mr. V.P. Chaudhry, Sr. Advocate with
                                        Mr. Nitinjya Chaudhry, Adv.

                         versus

NEW INDIA INSURANCE CO. LTD. .         ..... Respondents
                 Through: Mr. Dinesh Doshi, Advocate
                           for respondent no.2.

     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 3.11.1997 of

Motor Accident Claims Tribunal Whereby the tribunal awarded a sum of

Rs. 1,35,200/- along with interest @ 12 % per annum to the claimants.

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

3. On 2.8.1989 at about 6.05 A.M. deceased Hemant Kumar while

driving his two wheeler scooter, bearing registration No. DES 2181 set

out from his house situated at Model Town for going to St. Xavier"s

School. At about 6.15 A.M., the deceased entered the Mall Road

crossing along with the road leading to Timarpur and Majnu Ka Teela

for proceeding to Civil Lines. The scooter at that time was proceeding

at a moderate speed and on the proper side of the road. Suddenly a

truck bearing registration No. DBL 4168 being driven at a very fast

speed in a rash and negligent manner by its driver hit the scooter from

behind and stopped only after 30 paces. As a result of the forceful

impact, the scooter along with the scooterist fell on the road. The

scooterist sustained grievous injuries. He was removed to hospital and

he succumbed to his injuries on 4.8.1989.

4. A claim petition was filed on 16.1.1990 and an award was passed

on 3.11.1997. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

5. Sh. V.P. Chaudhary, counsel for the Appellants contended that

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

1198/- 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. 12,000/- per month. The counsel further maintained

that the tribunal erred in making the deduction to the tune of 1/2 nd of

the income of the deceased towards personal expenses when the

deceased was a bachelor at the time of accident and is survived by his

parents. The counsel submitted that the tribunal erroneously applied

the multiplier of 9 while computing compensation when according to

the fact and circumstances of the case multiplier of 17 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 23 years of age only and would have lived

for another 40-50 years 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 @ 12% per annum in place of only 15% 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. Per Contra Mr. Dinesh Doshi, counsel appearing for

respondent No.2 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.

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

perused the record.

8. As regards income, the case of the appellants was that the

deceased was in private service besides earning as Fabric Commission

Agent & used to earn Rs 6000/- p.m.

9. The appellants claimants had not brought on record any

document proving the income of the deceased. 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. 1200/- p.m. after taking

aid of M.W. Act.

10. 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.

11. 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.

12. Therefore, no interference is made in relating to income of

the deceased by this court.

13. As regards the increase in minimum wages the tribunal

committed no error in granting increase in minimum wages in the facts

and circumstances of the case.

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

that the 50% deduction made by the tribunal are on the high side as

the deceased is survived by his aged parents. In catena of cases the

Apex Court has in similar circumstances made 1/3rd deductions.

Therefore, I am inclined to interfered with the award on this ground

and modify the award by deducting 1/3rd expenses towards personal

expenses.

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

that the tribunal has erred in applying the multiplier of 9 in the facts

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

error. This case pertains to the year 1989 and at that time II schedule

to the Motor Vehicle 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

the force of the II schedule has risen to 18. The deceased was of 23

years at the time of the accident and his parents were of 41 years and

39 years of age. 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 13 should have been applied by the tribunal. Therefore, in

the facts of the instant case the multiplier of 13 is made applicable.

16. 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 factos including

inflation, policy being adopted by Reserve Bank of India from time to

time and other economic facts. In the facts and circumstances of the

case, I do not find any infirmity in the award regarding award of

interest @ 12% p.a. by the tribunal and the same is not interfered with.

17. On the contention regarding that the tribunal erred in not

granting adequate compensation towards loss of love & affection,

funeral expenses and loss of estate, whereas, no compensation has

been granted towards 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 enhanced to Rs. 20,000/-;

compensation towards funeral expenses is enhanced to Rs. 10,000/-

and compensation towards loss of estate is not interfered with and the

same is allowed at Rs. 15,000/-.

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

would come to Rs. 1800/- after doubling Rs. 1200/- to Rs. 2400/- and

after taking the mean of them. After making 1/3rd deductions the

monthly loss of dependency comes to Rs. 1200/- and the annual loss of

dependency comes to Rs. 14400/- per annum and after applying

multiplier of 13 it comes to Rs. 1,87,200/-. After considering Rs.

45,000/-, which is granted towards non pecuniary damages the total

compensation comes out as Rs. 2,32,200/-.

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

enhances to Rs. 2,32,200/- from Rs. 1,35,200/- with interest on the

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

petition till realization and the same shall be paid to the appellant by

the respondent no.1 to 3 who are jointly and severally liable in the

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

order.

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

of.

April 27, 2009                              KAILASH GAMBHIR, J.