Sh. Yashpal & Ors vs Sh. Ram Narayan & Ors.
2009 Latest Caselaw 1824 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO No. 375/1999

                     Judgment reserved on: 28.2.2008
%                    Judgment delivered on: 4.5.2009


Sh. Yashpal & Ors.                          ...... Appellants
                     Through: Mr. Y.R. Sharma, Advocate

                            versus


Sh. Ram Narayan & 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 12.5.99 of

the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 1,49,280/- along with interest @ 12% per

annum to the claimants.

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

3. On 1.10.1994 deceased Bharat Bhushan was driving a

bicycle. He was coming from Tilak Nagar side and was going

towards Raja Garden. At about 3.30 p.m. he reached a place near

Wood Land Park on Najafgarh Road. In the meanwhile, a bus

bearing registration No. DBP 2356 came from the Tilak Nagar

side and struck against the cycle of the deceased from behind. As

a result of the impact, deceased received injuries. In fact, he was

dragged along with the cycle to a considerable distance. He was

removed to DDU hospital where he succumbed to the injuries

received in this accident on the same day.

4. A claim petition was filed on 28.4.1994 and an award was

passed on 12.5.1999. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. Y.R. Sharma, counsel for the appellants contended that

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

1868/- per month whereas the tribunal should have assessed the

income of the deceased at Rs. 2000/- per month. The counsel

further maintained that the tribunal erred in making the

deduction to the tune of 1/3rd 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

parents. The counsel submitted that the tribunal erroneously

applied the multiplier of 10 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 17 yrs of age only and would have lived for another 40-50 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

her 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 @ 16% 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 appeared for the respondents.

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

the record.

8. PW-1 deposed that the deceased was 17-18 years of age on

the date of accident. He used to earn about Rs. 2,000/- per month

by supplying polythene milk packets and also used to study in

school and was a student of XI std.

9. 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. 1868/- p.m. according to the minimum wages rates for a

matriculate.

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 relation to income of

the deceased by this court.

13. As regards the future prospects, it has been the view of this

Court that whenever income is assessed in accordance with

Minimum Wages Act then increase in Minimum Wages should

also be taken into consideration, which is not akin to future

prospects. Thus, the Tribunal erred in not considering the same.

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

that the 1/3rd deduction made by the tribunal are on the higher

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

cases the Apex Court has in similar circumstances made 1/3 rd

deductions. Therefore, I am not inclined to interfere with the

award on this ground.

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

that the tribunal has erred in applying the multiplier of 10 in the

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

committed error. This case pertains to the year 1994 and at that

time II schedule to the Motor Vehicles Act had already been

brought on the statute book. The deceased was of 17 yearss at

the time of the accident and his parents were of 42 years and 38

years. 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 15 as per the II Schedule should have been applied.

Therefore, the award is modified in this regard.

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 16% 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.

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

granting compensation towards loss of love & affection, funeral

expenses, loss of estate 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.

20,000/-; compensation towards funeral expenses is awarded at

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

at Rs. 10,000/-.

18. Thus the total loss of dependency comes to Rs. 3,36,240/-

(1868 + 3736/2 x 2/3 x 12 x 15). After considering Rs. 40,000/-

which is granted towards non pecuniary damages, the total

compensation comes out as Rs. 3,76,240/-.

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

enhanced to Rs. 3,76,240/- from Rs. 1,49,280/- with interest @

7.5% per annum on the differential amount 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 equal

proportion, within 30 days from the date of this order.

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

of.

04th May, 2009                         KAILASH GAMBHIR, J.