Delhi High Court
Pratap Singh & Ors. vs New India Assurance Co. Ltd. on 19 April, 2012
Author: G.P. Mittal
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:19th April, 2012
+ FAO No.607/1999
PRATAP SINGH & ORS.
..... Appellants
Through: Mr. Alok Sinha with
Mr. P.Ojha, Advocates
Versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondents
Through: Mr. Kanwal Chauhdary,
Advocate for the Respondent
No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM. APPL No.6946/2012
The Appellant No.2 has died. The other legal heirs of the
deceased Rajesh are already on the record. Name of Appellant No.2 is
deleted from the array of parties.
Application stands disposed of.
FAO No.607/1999
1. The Appellants who are the parents of the deceased Rajesh seek
enhancement of compensation of `99,000/- awarded for his
death in a motor accident which took place on 03.03.1986.
2. The Claims Tribunal by a judgment dated 17.09.1999 held that
the accident was caused by the rash and negligent driving of
the DTC Bus No. DEP-7336 by its driver Subhash Chand,
Respondent No.3.
3. During inquiry before the Claims Tribunal, it was claimed that
the deceased was working as a mechanic with M/s Dwarka
Motor Workshop, near police post, Rajouri Garden, New Delhi
and was getting a salary of `750/-, in addition to a sum of
`250/- towards extra repairs. The Claims Tribunal accepted
that the deceased was working as a mechanic. It accepted his
salary of `750/- per month, but did not take into account the
extra income of `250/-. The Claims Tribunal added 50%
towards future prospects relying on Sarla Dixit v.Balwant
Yadav, (1996) 3 SCC 179 and applied the multiplier of 11 to
compute the loss of dependency as `99,000/-.
4. The learned counsel for the Appellants has raised the following
contentions:
i) The deceased's income ought to have been accepted as
`1000/- per month.
ii) No compensation towards non-pecuniary damages and
funeral expenses has been granted by the Claims
Tribunal.
iii) No interest has been awarded before the year 1991. It is
argued that there was no negligence on the part of the
Appellants in delaying the proceedings before the
Claims Tribunal. The Appellants were, therefore,
entitled to interest from the date of the institution of the
Petition.
5. On the other hand, the learned counsel for the Respondent
Insurance Company urges that the Claims Tribunal erred in
accepting the salary to be `750/- per month any in granting
future prospects in the absence of any evidence. The
compensation awarded, argues the learned counsel, is on the
higher side. It is urged that as far as award of interest is
concerned, even while granting interim compensation under
Section 92A of the Motor Vehicles Act, 1939, the interest was
awarded only for a period of four years i.e. w.e.f. 1991. The
said award having not been challenged, the finding of the
Claims Tribunal that there was negligence on the part of the
Appellant in pursing the Claim Petition attained finality.
6. The Claim Petition was instituted on 11.04.1986 and was
amended in the year 1990 when the insurance particulars were
provided by the owner of the vehicle involved in the accident.
In para 5 of the Claim Petition, it was specifically averred that
the deceased was employed with M/s Dwarka Motor
Workshop, near police post, Rajouri Garden, New Delhi. In
para 6 it was pleaded that the deceased had an income of `750/-
per month and an extra income of `250/- per month totaling it
to `1000/- per month. These averments were not denied by the
Respondents either specifically or by necessary implication.
The Respondents did not produce any evidence to rebut the
testimony of PW4, the deceased's father that the deceased had
a total income of `1000/- per month.
7. There was no evidence with regard to the deceased's future
prospects. In the circumstances, no addition on account of
future prospects could have been made by the Claims Tribunal.
8. As far as the award of interest is concerned, in para 30 of the
impugned judgment, the Claims Tribunal held that the
Appellants had not been prosecuting the Claims Petition
diligently and, therefore, they were entitled to interest for a
period of four years only upto 27.01.1994 and thereafter w.e.f.
27.01.1994 till the realization of the amount. A perusal of the
Trial Court Record would reveal that the Claim Petition was
dismissed in default on 18.03.1987 and application for
restoration was moved on 06.04.1987. The grounds for
adjournment inter alia were; the file was not available; the WS
was not filed; the lawyers were on strike and the Respondent
Owner of the offending bus took time in providing the
insurance particulars of the offending vehicle. Of course,
adjournments were also sought on behalf of the Appellants, but
all the parties contributed to the delay. The liability for the
delay, therefore, could not have been fastened squarely on the
Appellants.
9. The contention raised on behalf of the Respondent Insurance
Company that since interest was granted for a period of four
years on the interim award of `25,000/- also, the finding would
operate res judicata in these proceedings for award of interest
on the compensation under Section 166 of the Motor Vehicles
Act, is devoid of any merit. That finding was confined to the
interim award under Section 140 of the Act only.
10. In view of above discussion, the compensation is reassessed as
`84,000/-(`1000/- X 1/2 X 14 X 12). Considering that the
accident took place in the year 1986, I would award `15,000/-
towards loss of love and affection and `5,000/- each towards
loss to estate and funeral expenses.
11. The compensation is thus enhanced from `99,000/- to
`1,09,000/- which shall carry interest @ 12% per annum from
the date of the filing of the Petition till the date of the award
passed by the Claims Tribunal i.e. 17.09.1999 and @ 7.5% per
annum from the date of the impugned judgment till the deposit
of the enhanced amount in this Court. The enhanced amount of
compensation along with interest as stated earlier shall be
deposited with the Registrar General of this Court within eight
weeks. Since this case relates to the year 1986, the enhanced
compensation along with interest shall be released immediately
in favour of the Appellant No.1.
12. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
APRIL 19, 2012
pst
