Smt. Basmati & Ors. vs Sh. Rajkumari & Ors.
2009 Latest Caselaw 1810 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                               FAO NO.259/94
                                    Judgment reserved on: 28.2.2008
                                    Judgment delivered on:4.5.2009

Smt.Basmati & Ors.                                        ......Appellant

                               Through Mr.Sanjay Goswami, Adv

Versus

Sh Rajkumar & Others.                               ........ Respondents

                                Through: Sh.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 in the Digest?        NO

KAILASH GAMBHIR, J.

1. The present appeal arises out of the award dated 5/7/1994 of

the Motor Accident Claims Tribunal whereby the Tribunal awarded a

sum of Rs. 1,53,600/- along with interest @ 6% per annum to the

claimants.

2. The brief conspectus of facts is as under:

3. On 19.12.84 at about 4.40 p.m deceased Bhagwat Saroop

alongwith his brother Bishan Prakash boarded bus no. DEP 4902 route

no. 320 to go to the house of his brother. He was to get down at

Jagatpuri bus stop. When he was getting down from the said bus, the

bus was abruptly started by its driver respondent no.1 due to which

deceased lost his control and fell down from the bus. He was crushed

under the rear wheel of the bus.

4. A claim petition was filed on March 1985 and an award was

passed on 5/7/1994. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. Sanjay Goswami counsel for the appellants contended that

the tribunal erred in assessing the income of the deceased at Rs. 800/-

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/- per month. The counsel submitted that the tribunal has

erroneously applied the multiplier of 16 while computing compensation

when according to the facts 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 35 yrs of age only and

would have lived for another 30-35 yrs had he not met with the

accident. It was also contended 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 @ 12% per annum in place of only

6% 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. P.K. Seth, counsel for the respondent insurance

company submitted that the award passed by the tribunal is just and

fair and does not require any interference by this court.

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

8. The case of the appellants claimants was that the deceased was

an agriculturist having 2 ½ acres of land and used to earn Rs. 800/-pm.

But widow of the deceased deposed as PW2 that the income of the

deceased was 8000/- to 9000/- pm. No documentary evidence in this

regard was brought on record. But considering that no dispute in this

regard is made by the respondents, no interference is made in the

award in this regard.

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 16 in the facts and

circumstances of the case, I feel that the tribunal has committed no

error. This case pertains to the year 1984 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 35 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 and also considering that no deduction has

been made by the tribunal towards personal expenses and no dispute

in this regard is made by the respondents in this regard, the multiplier

of 16 shall be applicable in the peculiar facts of the case.

11. As regards the issue of interest that the rate of interest of 6% 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 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,

change of economy, policy being adopted by Reserve Bank of India

from time to time and other economic factors. The tribunal observed in

the award that the petition was filed in March 1985 and respondents

were served in April 1986, issues were framed in November 1986 and

petitioners closed their evidence in February 1994. No doubt that the

MV Act is a beneficial piece of legislation, legislated with the purpose

of giving relief to the victim of the motor accident but at the same

time, a victim of the motor accident cannot be allowed to gain benefit

out of his own faults and negligence due to which delay was caused in

disposal of the case. In the facts and circumstances of the case, I do

not find any infirmity in the award regarding award of interest @ 6% pa

by the tribunal and the same is not interfered with.

12. On the contention regarding that the tribunal has erred in not

granting compensation towards non-pecuniary damages, 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. On the basis of the discussion, the income of the deceased would

come to Rs. 800/- pm as assessed by the tribunal or Rs. 9,600/- per

annum and after applying multiplier of 16 it comes to Rs. 1,53,600/-.

Thus, the total loss of dependency comes to Rs. 1,53,600/-. After

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

damages, the total compensation comes out as Rs. 2,63,600/-.

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

enhanced to Rs. 2,63,600/- from Rs. 1,53,600/- 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 insurance company in the same proportion as awarded

by the tribunal within 30 days of this order.

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

04th May, 2009                                  KAILASH GAMBHIR,J