R.C. Beri vs State Of Punjab & Others
2009 Latest Caselaw 1826 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                        FAO No. 290/1997

                          Judgment reserved on: 25.2.2008
                          Judgment delivered on: 4.5. 2009

Daya Chand & Ors.                 ..... Appellants.
                     Through: Mr. O P Goyal, Adv.


                     versus

New India Assurance Company Limited
& Ors.                                     .... Respondents
                   Through: Shri P K Seth, Adv. for R-1.
                            Shri Y.R. Sharma, Advs. for R3 to
                            R6.

     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 19.7.1994 of

the Motor Accident Claims Tribunal whereby the Tribunal awarded a

sum of Rs. 79,400/- along with interest @ 12% per annum to the

claimants.

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

3. On 20.10.1982 deceased Smt. Rameshwari was travelling in bus

bearing registration No. DEP 3973. The bus was being driven rashly

and negligently and at a high speed by its driver. All of a sudden the

driver of the bus applied brakes. As a result deceased Smt.

Rameshwari Fell down and sustained grievous injuries. She died in the

hospital on 21.10.1982.

4. A claim petition was filed on 10.12.1982 and an award was

passed on 19.7.1994. 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 holding liability of insurance company to the extent of

Rs. 15,000/- only and Mr. Y.R. Sharma, counsel for respondents No. 3

to 6, claimants, contended that the Tribunal erred in assessing the

income of the deceased at Rs. 400/- 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. 550/- per month. The

counsel submitted that the tribunal erroneously applied the multiplier

of 7 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 she was of 36 yrs of age only and would have lived for

another 40-50 yrs had she not met with the accident. It was also urged

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

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. The

counsel has relied on following judgments in support of his

contentions:

1. 1994 ACJ I SC ( Sussamma Thomas)

2. 2007 ACJ 2123.

3. Unlimited II ( 1992) ACC 611 DB Delhi High Court.

4. III ( 2005) ACC 559 (FB) Jharkhand HC.

6. Shri P.K. Seth, Advocate appeared on behalf respondents No: 1.

He submitted that the award passed by the ld. Tribunal is just and fair

and requires no interference by this court.

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

record.

8. Appellant No. 1 examined himself as PW-5. He deposed that

deceased Smt. Rameshwari was his wife who died in road side

accident. He further testified that she was working with M/s Garments

and was earning Rs. 550/- per month. She was spending all her

earnings for the welfare of the appellants.

9. The appellants claimants had not brought on record any

document showing that the deceased was working anywhere or what

was her earnings. 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. 400/- after considering the wages for skilled workman under the

Minimum Wages 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 relation to income of the

deceased by this court.

13. As regards the future prospects, there is no sufficient material

on record to award future prospects.

14. However, a perusal of the minimum wages notified under the

Minimum Wages Act show that to neutralize increase in inflation and

cost of living, minimum wages virtually double after every 10 years.

For instance, minimum wages of skilled labourers as on 1.1.1980 was

Rs. 320/- per month and same rose to Rs. 1,083/- per month in the

year 1990. Meaning thereby, from year 1980 to year 1990, there has

been an increase of nearly 238% in the minimum wages. Thus, it could

safely be assumed that income of the deceased would have doubled in

the next 10 years. Therefore, the Tribunal committed error in not

considering the same.

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

the tribunal erred in applying the multiplier of 7 in the facts and

circumstances of the case, I feel that the tribunal has committed error.

This case pertains to the year 1982 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. At the time of the accident

the deceased was of 36 years of age and her husband was of 46 years

of age and further she is also survived by 3 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 the multiplier of 11 should have been

applied.

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

granting adequate compensation towards loss of love & affection,

funeral expenses and loss of estate, 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. 30,000/-; 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 instead of Rs. 7,000/-.

17. 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.

18. Therefore, total loss of dependency comes to Rs. 52,800/-

(400+800/2 x 12 x 2/3 x 11). Also Rs. 33,600/- is awarded towards

personal loss of services and children.

19. After considering Rs. 1,00,000/- which is granted towards non-

pecuniary damages, the total compensation comes out as Rs.

1,49,400/-.

20. As regards the issue of limited liability of the insurance company

upto Rs. 15,000/-, on perusal of the insurance policy Ex. R4W1/1 it is

manifest that Rs. 636/- had been charged as additional premium

towards limited liability in respect of 53 passengers and Rs. 240/- + Rs.

50/- were charged towards IIIrd party risk. In the instant case the

deceased was travelling in the bus i.e. she was a passenger in the bus

and thus was clearly covered by the said policy. Be that as it may, it is

mentioned in the said Ex R4W1/1 in the heading "limits of liability" that

in the event of an accident the liability of the insurance company is

unlimited. But RW2 clarified that the said endorsement is with regard

IIIrd party risk. He had also thought on record EX RW 2/1, a copy of

tarrif as per which during the relevant time, the extent of liability of

insurance company towards passengers was limited to Rs. 15,000/-

only. Also there is no dispute as regards the fact that Smt. Rajeshwari

was a passenger in the bus. Therefore, the respondent No.4 insurance

company is liable to pay the entire compensation amount to the

appellants to the extent of Rs. 15,000/- only.

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

enhanced to Rs. 1,86,400/- from Rs. 79,400/- 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 respondent

nos.3 to 6 by the appellant and respondent Nos. 1 & 2 in the same

proportion as awarded by the Tribunal within a period of 30 days from

the date of this order.

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

04th May, 2009                        KAILASH GAMBHIR, J.