Sarla and Others vs Sh. Ashok Kumar and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 30/4/1998 of the Motor Accident Claims Tribunal whereby the

Tribunal awarded a sum of Rs. 2,24,000/- along with interest @ 12% per annum to the claimants.

The brief conspectus of the facts is as follows:

On 7/10/1993 at about 7:00 a.m. the deceased Sh. Kush Rana @ Bobby Rana aged 35 years was driving his motorcycle bearing registration No.

DHT 502 while going to Hari Nagar via Rohtak Road. When he reached near Chowk Multan Nagar on Rohtak Road and was stationary due to

the red signal, a bus bearing registration No. DEP 9638 came from the direction of Peera Garhi Chowk at a high speed and dashed in to the

motorcycle of Sh. Kush from behind, as the driver of the bus could not stop it due to high speed. As a result of the forceful impact, Sh. Kush fell

on the road. He was removed to E.S.I. hospital from the accident site, where he was declared as ''brought dead''. A claim petition was filed by the

claimants on 13/12/1993 and the award was passed on 30/4/1998. Aggrieved with the said award the claimants have preferred an appeal before

this Court for enhancement of compensation.

Sh. O. P. Mannie, counsel for the appellants contended that the tribunal has erred in assessing the income of the deceased at Rs. 2,000 per

month whereas the deceased was actually earning Rs. 4,000 to 5,000 per month. 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 35 yrs of age only and would have lived for another 30-35 yrs had he not met with the accident. The counsel also stated that

had the deceased not met with his untimely death he would have expanded his business and would have been earning 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 further maintained that the tribunal erred in making the deduction of 1/3rd

towards personal expenses when the deceased was supporting a large family at the time of accident and is survived by his widow wife, his aged

parents and his minor son and minor daughter. The counsel submitted that the tribunal has erroneously applied the multiplier of 14 while computing

compensation when according to the second schedule multiplier of 17 is applicable for the age group of above 30 years and not exceeding 35

years as the deceased was of 35 years of age at the time of the accident. 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 and the loss of services, which were being

rendered by the deceased to the appellants. 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 @ 24% per annum in place of only 12% per annum.

The counsel for the appellants has relied upon following judgments in support of his contentions:

(1) Mohinder Kaur and Ors. v. Hira Nand sindhi (Ghoriwala) and Ors. 2007 ACJ 2123 (SC);

(2) Lekh Raj and Another Vs. Suram Singh and Others,

(3) An unreported judgment of Delhi High Court in United India Insurance Co. Ltd. v. Surjeet Kaur in MAC APP No. 40/2004 decided on

25/1/2007;

(4) 2007 VI AD 730 (Delhi); and

(5) United India Insurance Co. Ltd. v. Sulochana and Ors. III (2007) ACC 50 (Mad) (DB).

Nobody has been appearing for the respondents.

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

On the contention of the counsel for the appellant regarding income and future prospects of the deceased, I am of the view that nothing has been

brought on record to show that the deceased was earning Rs. 4,000 to 5,000 per month or had a bright future. On perusal of the award it is

manifest that there is contradiction in the deposition of the widow of the deceased and that of Sh. Love Rana, brother of the deceased. The

appellant No. 1 widow of the deceased deposed that the deceased was self employed at the time of the accident and was running a business of

export of readymade garments. But she failed to produce any document or any other evidence on record to show that he was self employed or

was running a readymade garment''s business or that he was earning Rs. 4,000 to 5,000 per month. Sh. Love Rana has stated in his deposition that

the deceased was doing the work of export in readymade garments and used to do work for him and used to supply them only to him. Sh. Love

deposed that the proprietorship firm is in his name and the deceased used to do the work entrusted by him. He deposed that the deceased used to

maintain a motorcycle and was given allowance for that. He also claimed that he had vouchers showing the amount given to the deceased but no

such vouchers were brought on record. In his deposition he also stated that neither the deceased nor he was an income tax payee. There is clear

contradiction in the two depositions.

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. In this regard the Hon''ble Apex Court has in The Oriental Insurance Company Limited Vs. Meena

Variyal and Others, observed as under:

It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation

could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or

income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act, which stands in the way of the Tribunal

asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis-a-vis claim for

compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of

establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence

of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the

income that was being derived by the deceased from his employment.

Therefore, the income of the deceased cannot be taken to be Rs. 4000/- or 5000/- per month as asserted by the claimants. But the income

taken by the tribunal at Rs. 2,000/- per month is also not supported by the documents on record. The tribunal has failed to give any reason for

taking Rs. 2000/- as the income of the deceased.

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. In my considered view, in the instant case, the

tribunal erred in taking Rs. 2,000 pm as the income of the deceased. The income of the deceased should be taken as Rs. 1217 pm, which was the

prevalent minimum wages for a semi-skilled workman under the Minimum Wages Act.

Nothing has also been brought on record to show the future prospects of the deceased. In this regard also it is settled that the claimants have

to prove by cogent evidence that the deceased had some skills or qualities which would have led to his advancement in future career, earnings and

life. In this regard the relevant portion of para 8 of the judgment of the Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and

Others, is reproduced below:

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.

However, this Court is of the view that along with taking the aid of the Minimum Wages Act, the increase in the minimum wages should also be

granted. Increase in minimum wages is not akin to future prospects for the reason that inflation eats into the purchasing power of the rupee and to

neutralize the falling power of the rupee, wages are increased. A perusal of the minimum wages notified under the Minimum Wages Act show that

minimum wages virtually more than double after every 10 years. Therefore to compute the income of the deceased the tribunal ought to have

granted increase in minimum wages after doubling the income and taking the mean of the same.

As regards the contention of the counsel for the appellant that the 1/3rd deductions made by the tribunal are on the higher side as the deceased

is survived by his widow wife, his aged parents and his minor son and minor daughter. In catena of cases the Apex Court has in similar

circumstances made 1/3rd deductions. Therefore, 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 erred in applying the multiplier of 14 in the facts and circumstances of

the case, I feel that the tribunal has committed error. This case pertains to the year 1993 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. 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 15 should have been

applied. Therefore, in the facts of the instant case the multiplier of 15 shall be applicable.

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 24% 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

u/s 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, change of economy, policy being adopted by Reserve Bank of India from time to time and other economic

factors. In this regard the Hon''ble Apex Court has in Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another,

observed as under:

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.

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 u/s 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 u/s 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 Workmen''s 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.

On the basis of the above discussion, I do not find any infirmity in the award regarding award of interest @ 12% pa by the tribunal.

On the contention regarding that no compensation towards non-pecuniary damages has been granted, I am of the view that it should be

granted to the claimants. The tribunal has erred in not granting any 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 Rs. 25,000/- is granted

towards loss of love and affection, Rs. 50,000/- is awarded towards loss of consortium, Rs. 5,000/- is granted towards funeral expenses and Rs.

10,000/- is granted towards loss of estate.

On the basis of the discussion, the income of the deceased would come to Rs. 1825.50/- after doubling Rs. 1217/- to Rs. 2434/- and after

taking the mean of them. After making 1/3rd deductions the monthly loss of dependency comes to Rs. 1217/- and the annual loss of dependency

comes to Rs. 14604/- per annum and after applying multiplier of 15 it comes to Rs. 2,19,060/-. Thus, the total loss of dependency comes to Rs.

2,19,060/-. After considering Rs. 25,000/- towards loss of love and affection, Rs. 50,000/- towards loss of consortium, Rs. 5,000/- towards

funeral expenses and Rs. 10,000/- towards loss of estate, the total compensation comes out as Rs. 3,09,060/-.

In view of the above discussion, the total compensation is enhanced to Rs. 3,09,060/- from Rs. 2,24,000/-. The differential amount shall be

paid to the appellants by respondent insurance company with upto date interest @ 7.5% p.a. from the date of filing of petition till realisation in the

same proportion as awarded by the Tribunal.

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