Delhi High Court
R.A Sharma & Ors. vs Raj Kumar & Ors. on 20 April, 2009
Author: Kailash Gambhir
Bench: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 308/1999
Judgment reserved on 20.2.2008
Judgment delivered on: 20.4.2009
R.A. Sharma & Ors. ..... Appellants.
Through: Mr. Y.R. Sharma, Adv.
Versus
Raj Kumar & Ors. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may No
be allowed to see the judgment?
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 13/4/1999 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 1,61,326/- along with interest @ 12% per annum to the claimants.
2. The brief conspectus of the facts is as follows: FAO No. 308/1999 Page 1 of 8
3. That on 18.5.1990 Shri Dinesh Kumar (deceased) was going to I.G.I. Airport, along with Shri Sunil Kumar on his scooter No. DBH 2281 and when they reached near the crossing of Village Mahipal Pur, the scooter of the deceased was proceeding towards I.G.I Airport on Gurgaon Road, the deceased was driving his scooter at a slow speed on its proper side who took a right turn after giving a hand signal, at that very time a Maruti Van No. DDA 8281 driven by the respondent No. 1 in a rash and negligent manner came from Gurgaon side i.e. opposite direction at a very fast speed and dashed against the scooter of the deceased. With the result, the scooter and the scooterist fell down on the road and received serious injuries. The accident was caused due to rash and negligent driving of respondent No. 1 when he was driving maruti van bearing registration No. DDA 8281. That the deceased Dinesh Kumar and the pillion rider were removed to Safdarjung Hospital by PCR and from where Dinesh Kumar was shifted to AIIMS, New Delhi on the same day, where he remained admitted from 18.5.90 till his death i.e. 8.7.1990.
4. A claim petition was filed on 15/10/1990 and an award was on 13/4/1999. Aggrieved with the said award enhancement is claimed by way of the present appeal.
FAO No. 308/1999 Page 2 of 8
5. Sh. Y.R. Sharma counsel for the appellants contended that the tribunal erred in assessing the income of the deceased at Rs. 1,600/- 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. 2,400/- per month. The counsel submitted that the tribunal has erroneously applied the multiplier of 11 while computing compensation when according to the facts and circumstances of the case multiplier of 13 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 23 yrs of age only and would have lived for another 30-40 yrs had he not met with the accident. It was also alleged 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 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 FAO No. 308/1999 Page 3 of 8 should have allowed simple interest @ 18% 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. As regards the income, the appellant no. 1 deposed that the deceased was of 23 years of age at the time of the accident and was working as a photographer with Malik Studio at Mehrauli Road, Palam Colony and was earning Rs. 2,400/- pm. He also deposed that further the deceased used to earn Rs. 1500-2000/- pm by using his own video camera. PW4 Sh. Ramesh Kumar Malik, employer of the deceased had proved the salary certificate of the deceased, Ex. PW1/A, which was issued by him and according to it the income of the deceased was Rs. 1,200/- pm.
9. Considering that no dispute is raised by the respondents in this regard, thus no interference is warranted. FAO No. 308/1999 Page 4 of 8
10. As regards the future prospects, I am of the view that there is sufficient material on record to award future prospects. Both PW 1 & PW4 had proved the same. Therefore, the tribunal committed error in not granting future prospects in the facts and circumstances of the case.
11. As regards the contention of the counsel for the appellant that the tribunal has erred in applying the multiplier of 11 in the facts and circumstances of the case, I feel that the tribunal has committed no error. This case pertains to the year 1990 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. The age of the deceased at the time of the accident was 23 years and he is survived by his aged parents aged 51 years and 44 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 and after taking a balanced view considering the FAO No. 308/1999 Page 5 of 8 multiplier applicable as per the II Schedule to the MV Act, the multiplier of 11 applied by the tribunal is already on the higher side and same does not require any interference.
12. 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 18% 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.
FAO No. 308/1999 Page 6 of 8
13. On the contention regarding that the tribunal has erred in not granting adequate compensation towards loss of love & affection, funeral expenses and loss of estate, whereas, no compensation has been granted towards 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. 20,000/-; compensation towards funeral expenses is enhanced to 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.
14. 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 their only son 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.
15. Further, Rs. 10,000/- has been awarded by the tribunal towards special diet and conveyance expenses and Rs. 10,000/- towards mental pain and sufferings.
FAO No. 308/1999 Page 7 of 8
16. On the basis of the discussion, the income of the deceased would come to Rs. 1800/- after doubling Rs. 1200/- to Rs. 2400/- and after taking the mean of them. After making 1/3 rd deductions the monthly loss of dependency comes to Rs. 1200/- and the annual loss of dependency comes to Rs. 14,400/- per annum and after applying multiplier of 11 it comes to Rs. 1,58,400/-. Thus, the total loss of dependency comes to Rs. 1,58,400/-. After considering Rs. 90,000/-, which is granted towards non-pecuniary damages and Rs. 20,000/- awarded towards special diet and conveyance expenses and mental pain and sufferings, the total compensation comes out as Rs. 2,68,400/-.
17. In view of the above discussion, the total compensation is enhanced to Rs. 2,68,400/- from Rs. 1,61,326/- with interest on the differential amount @ 7.5% per annum from the date of filing of the petition till realisation and the same should be paid to the appellants by the respondent insurance company in the same proportion as awarded by the tribunal.
18. With the above direction, the present appeal is disposed of. 20.4.2009 KAILASH GAMBHIR,J.
FAO No. 308/1999 Page 8 of 8