Delhi High Court
Pushpa Devi And Ors. vs United India Insurance Co. Ltd. on 11 December, 2007
Author: Kailash Gambhir
Bench: Kailash Gambhir
JUDGMENT Kailash Gambhir, J.
1. Since a short controversy is involved in the present appeal the matter can be disposed of at this stage itself. Counsel appearing for the parties have also no objection if the matter is taken up for final disposal.
2. Admit.
3. By way of this appeal, the appellants seeks to challenge the impugned award dated 27.4.2007 to claim enhancement in compensation. The Tribunal has awarded compensation to the tune of Rs. 7,81,348/- along with interest @ 7.5% p.a.
4. The brief facts relevant for deciding the present appeal are that on 25.11.2005 at about 7.30 A.M. the deceased Sh.Vijay Kumar Prasad received fatal injuries due to the rash and negligent driving of thedriver, Shri Ishwar Prasad, while driving the bus bearing registration No. DL 1PB 4299 on the road opposite to the Main Gate, Tihar Jail, Jail Road, New Delhi.
5. Mr. Yashpal Shankar, counsel for the appellant contends that the Tribunal has not considered the grant of future prospects, although the appellants have produced PW-3, Shri Jagdish Prasad, Superintendent of the concerned school where the deceased was employed who in his deposition has deposed that the deceased had a chance to be promoted to the post of Lab Assistant. The second contention of the counsel for the appellant is that the deceased is survived by seven members in the family comprising of his widow, five children and his father, but the Tribunal has deducted 1/3rd income of the deceased towards personal expenses. The third contention of the counsel for the appellant is that the rate of interest as awarded by the Tribunal is quite on the lower side.
6. Per contra, Mr. Sameer Nandwani, counsel for the respondent contends that appellants have failed to prove on record the future prospects of the deceased. Placing reliance on the judgment of Bijoy Kumar Dugar v. Bidya Dhar Dutta , counsel for the respondent contends that the appellants are not entitled to any compensation towards the future prospects as no evidence has been placed on record by the appellants in this regard. As regards the second contention of the counsel for the appellant the counsel for the respondent contends that the Tribunal has rightly deducted 1/3rd income towards personal expenses of the deceased. Counsel for the respondent also contends that the rate of interest as awarded by the Tribunal is also reasonable.
7. I have heard counsel for the parties and have also perused the record.
8. Perusal of the record shows that the appellants did examine one witness from the school where the deceased was employed but he did not place any material on record or made any categorical deposition in his testimony to show as in what manner the deceased would have got the promotion and at which rank and within how much span of time. The Tribunal has referred to the cross-examination of the said witness and came to the conclusion that the appellants have failed to prove and establish that the deceased would have got promotion in near future or there would have been increase in his income on account of his promotion. It would be appropriate to refer to the said para of the impugned judgment as under:
I have given my thoughts to the matter. So far as promotion of the deceased is concerned, the same can only be taken into account it there is evidence regarding the same on record. In the present case there is no evidence on record to prove that deceased was going to be promoted shortly or because of his special merit or qualification, he would have got a promotion within two, three, five or ten years. In fact PW-3, in his cross-examination has submitted that there was no chance of promotion of the deceased at the time of his death and he also could not say whether he would have got promoted within one, five or ten years. In these circumstances, it cannot be held that petitioners have proved the fact that deceased would have got promoted in near future and thus, there would have an increase in income. The contention of Ld. Counsel for the petitioner, therefore, cannot be accepted.
9. The issue of future prospects has been discussed extensively by the Apex Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta . Relevant para of the said judgment is reproduced as under:
The mere assertion of the claimants that the deceased would have earned more than Rs. 8000 to Rs. 10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be.
10. In the light of the above position, I do not find any merit in the contention of the counsel for the appellant. For claiming future prospects the appellants should have placed some material on record as to how and in what manner the deceased would have got promotion in future and at what period of time. In the absence of any such evidence placed on record, the appellants are not entitled to the claim of any loss towards future increase in the income. As regards the other contention of the counsel for the appellant that the Tribunal has deducted 1/3rd income of the deceased towards personal expenses, I find that there is merit in the submission of counsel for the appellant. The deceased is survived by his wife and five children besides his father. The deceased died at the young age of 45 years, therefore, there was a large family dependent upon him for their sustenance. In the facts of the present case, I consider the deceased would not have spent more than 1/5th of his income towards personal expenses. Therefore, the finding of the Tribunal holding deduction of 1/3rd income towards personal expenses is modified and the same is now held to be 1/5th in place of 1/3rd deduction towards personal expenses of the deceased.
11. As regards the last contention of the counsel for the appellant that the rate of interest is on the lower side, I do not find any force in the argument of counsel for the appellant. The rate of interest of 7.5% cannot be considered to be on the lower side. In this regard in Abati Bezbaruah v. Dy. Director General, Geological Survey of India , the Hon'ble Apex Court has observed as under:
6. The question as to what should be the rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time.
18. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same, as it is consequential in the eye of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money, which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident claim cases having regard to the nature of provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4-A(3) of the Workmens Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion, there cannot be any hard-and-fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above.
12. On the basis of the above discussion, I do not find any infirmity in the award in relation to the rate of interest.
13. Counsel for the appellant states that respondent has already complied with the impugned award.
14. In the light of the above discussion, the respondent shall now be liable to pay the differential amount of Rs. 1,63,332/- along with up-to-date interest @ 7.5% on the differential amount from the date of filing of petition till realisation.
15. With these directions, appeal stands disposed of.