Bharpai Devi and Others vs Dharamvir Singh and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 19th May 1993 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 60,000/- along with no interest.

The brief conspectus of the facts is as follows:

On 31st January 1981 at about 10 P.M. the deceased Sh. Jawahar Singh was coming to his residence and when he reached at Samaipur Chowk, Auchandi Road, Delhi a DTC bus bearing registration No. DHP-3026 hit the deceased causing fatal injuries to him. The deceased was immediately removed to the Hindu Rao Hospital where he was declared brought dead.

A claim petition was filed on 21st April 1981 and the award was made on 19th May 1993. Aggrieved with the said award enhancement is claimed by way of the present appeal.

The appellants have assailed the said award on quantum of compensation. Counsel for the appellants contended that the tribunal erred in assessing the income of the deceased at Rs. 1,500 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. 5,000/- per month. The Counsel submitted that the tribunal has erroneously applied the multiplier of 5 while computing compensation, while according to the facts and circumstances of the case multiplier of 8 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. 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 learned Tribunal erred in not awarding any interest in the present case. He claimed that a simple interest @15% per annum should have been awarded. 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.

Nobody has been appearing for the respondents.

I have heard the learned Counsel for the appellants and perused the record.

As per the award, the appellants claimants had examined PW4 Smt. Bharpai Devi wife of the deceased, PW5 Sh. Vijay Singh and PW6 Shri Abhey Ram, who were from the same village as the deceased and the claimants. All the three witness deposed that the deceased was an agriculturist and used to earn about Rs. 5,000-6,000/- pm. Except the bald statements of the said three witnesses no cogent material was placed on record to prove the said income of the deceased. No doubt in unorganised sector like agriculture it is difficult to prove the income with the help of documentary evidence, yet how much land was owned by the deceased, how many workers were engaged by him, quality of procurement of seeds etc. Could have helped the Tribunal to properly assess the income of the deceased. After considering all these factors, I am of the view that the tribunal has not erred in not assessing the income of the deceased at Rs. 5,000/- pm., as claimed by the appellants.

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.

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.

But no interference is made in the award on this count since the issue of income is not disputed by the respondents and also if at this stage the income is assessed according to the Minimum Wages Act then the compensation will further dwindle down. Thus, in the interest of justice no interference is made in the award in this regard.

As regards the future prospects, I am of the view that there is no sufficient material to award future prospects. Therefore, the tribunal committed no error in not granting future prospects in the facts and circumstances of the case.

As regards the contention of the Counsel for the appellant that the 1/3 deduction made by the tribunal is on the higher side as the deceased is survived by his six children and a widow wife. On perusal of the award it becomes manifest that at the time of the death only two children of the deceased were unmarried. Thus, I am not inclined to interfere with the award on this ground.

As regards the contention of the Counsel for the appellant that the tribunal has erred in applying the multiplier of 5 in the facts and circumstances of the case, I feel that the tribunal has committed no error. This case pertains to the Motor Vehicles Act, 1939. This case pertains to the year 1981 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 deceased at the time of the accident was of 65 years of age and his widow wife was of 63 years of age. The eldest child of the deceased was of 42 years of age and the youngest child was of 15 years of age at the time of the accident. In any event even as per the schedule of Motor Vehicle Act the applicable multiplier is 5 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 the multiplier of 5 should have been applied. Therefore, the tribunal committed no error and in the facts of the instant case the multiplier of 5 shall be applicable.

As regards the issue of interest that no rate of interest has been awarded by the tribunal and the same should be awarded @ 15% p.a., I feel that the tribunal erred in not awarding any rate of interest, therefore, the award is unjust and unfair and requires interference. Although, no rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988 but it is mandatory for the tribunal to award interest. 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 find infirmity in the award regarding no award of interest and the same is awarded @ 7% pa.

On the contention regarding that the tribunal has erred in not granting adequate compensation towards non pecuniary damages, I feel that the same should have been awarded. In this regard compensation towards loss of love and affection is awarded at Rs. 60,000/-; compensation towards funeral expenses is awarded at Rs. 5,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-. Further, Rs. 25,000/- is awarded towards loss of consortium.

As far as the contention pertaining to the award 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.

On the basis of the discussion, the total loss of dependency comes to Rs. 60,000/-. After considering Rs. 1,00,000/-, which is granted towards non-pecuniary damages, the total compensation comes out as Rs. 1,60,000/-.

In view of the above discussion, the total compensation is enhanced to Rs. 1,60,000/- from Rs. 60,000/- with interest @ 7% per annum from the date of filing of the present petition till realisation and the same should be paid to the appellants by the respondent insurance company. The enhanced compensation be apportioned amongst the appellants in the same ratio as apportioned by the Tribunal.

With these observations the appeal stands disposed of.