Hans Kaur vs Bhola Ram & Ors.
2009 Latest Caselaw 1830 Del

          IN THE HIGH COURT OF DELHI AT NEW
                       DELHI

                          FAO NO.112/94
                   Judgment reserved on:4.3.2008
                   Judgment delivered on:4.5.2009

Hans Kaur                                         ......Appellant

                      Through Mr.O.P.Goyal, Adv

                      Versus

Bhola Ram & Ors.                           ........ Respondents

                      Through: Ms.Shanta Devi Raman, 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 18/1/1994

of the Motor Accident Claims Tribunal whereby the Tribunal

awarded a sum of Rs. 79,200/- along with interest @ 12% per

annum to the claimants.

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

3. On 12.10.78 at about 8.10 p.m deceased Charan Singh was

standing at the bus stop of IP Estate Depot, Ring Road, New Delhi

for checking purposes. He was traffic inspector working with Delhi

Transport Corporation. The offending truck no. DHL 548 which

was being driven by respondent no.1 Bhola Ram in a rash and

negligent manner struck against the deceased forcefully as a

result of which he died at the spot.

4. A claim petition was filed on 3/1/1979 and an award was

passed on 18/1/1994. Aggrieved with the said award

enhancement is claimed by way of the present appeal.

5. Sh. O.P. Goyal Ld.counsel for the appellants contended that

the tribunal erroneously applied the multiplier of 6 while

computing compensation while according to the facts and

circumstances of the case multiplier of 13 should have been

applied. It was urged by the ld. 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 future as he was of 48 yrs of age only and would

have lived for another 20-30yrs had he not met with the accident.

It was also contended by the Ld.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 to appreciate 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 @ 15% per annum in place of only 12% 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. The counsel urged that although there is the

limited liability of the insurance company but the insurance

company is liable to compensate the third party and then recover

from the insured.

6. Nobody appeared for the respondents.

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

perused the record.

8. As per the case of the appellants the deceased was a traffic

inspector in DTC and was earning Rs. 800/- pm. PW4 a colleague

of the deceased deposed that had the deceased not met with the

accident he would have been earning Rs. 2100-2200/-pm as an

Asst. Traffic Supervisor. The tribunal considering the same

assessed the income of the deceased as Rs. 1600/- pm. Although,

the tribunal considered the future prospects of the deceased but

committed error in computing the same. The tribunal ought to

have assessed the same by doubling Rs. 800/- and taking mean

of both of them and thus, Rs.1200/- would have been the income

of the deceased. But considering that no dispute has been raised

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

award.

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

that the tribunal has erred in applying the multiplier of 6 in the

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

committed error. This case pertains to the year 1978 and at that

time II schedule to the Motor Vehicles act was not brought on the

statute book. 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 49 years and he is survived by his widow and

five children. In the facts of the present case, I am of the view

that 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, the multiplier of 11 shall be

applicable.

10. 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 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.

11. On the contention regarding that the tribunal has erred in

not granting compensation towards loss of love & affection,

funeral expenses, 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. 50,000/-; compensation towards

funeral expenses is awarded at Rs. 10,000/- and compensation

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

12. 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.

13. As regards, recovery rights to the insurance company, the

counsel for the appellants has pointed out that although there is

the limited liability of the insurance company but as per a box

titled 'IMPORTANT NOTICE' in the policy Ex. RW1/1 the insurance

company is liable to compensate and pay the entire award

amount to the claimants as awarded under MV Act and then

recover from the insured. Perusal of Ex.RW1/1 indicates that in

the box 'IMPORTANT NOTICE' it has been mentioned as :

'The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule any payment made by the company in the certificate in order to comply with the Motor Vehicles Act 1939 is recoverable from the insured. Clause: AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY'.

14. I Consider that if read carefully, this clause does not come

to rescue of the appellants in the present facts and

circumstances. Ld.Tribunal has rightly held that the liability of the

insurance company is limited to RS.50,000/- and there is no

reason to interfere in the same.

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

as assessed by the tribunal would come to Rs. 1,600/-. After

making 1/3rd deductions the monthly loss of dependency comes

to Rs. 1100/- and the annual loss of dependency comes to Rs.

13,200/- per annum and after applying multiplier of 11 it comes

to Rs. 1,45,200/-. Thus, the total loss of dependency comes to Rs.

1,45,200/-. After considering Rs. 1,70,000/-, which is granted

towards non-pecuniary damages, the total compensation comes

out as Rs. 2,15,200/-.

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

enhanced to Rs. 2,15,200/- from Rs. 79,200/- 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.

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

of.

 May 04, 2009                        KAILASH GAMBHIR, J