Smt. Shanti Devi vs Sh. Bhagwan Dass and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 4th August of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 56,280/- along with interest @ 10% per annum to the claimants.

The brief conspectus of the facts is as follows:

On 12th July 1991, at about 2:00 P.M. the deceased Sh. Kuldip Kumar, aged about 22 years was going on two wheeler scooter bearing registration No. DDP-190 from the direction of Desh Bandu Gupta Road towards Pusa Road. At that time a milk tanker bearing licence plate No. DL 1G 2933 came speeding towards the deceased''s scooter and hit him. Consequently, Sh. Kuldip Singh fell down and received fatal injuries. He was removed to Ram Manohar Lohia Hospital where he was declared dead.

A claim petition was filed on 10th October 1991 and an award was passed on 4th August 1999. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. O.P. Goyal, counsel for the appellants assailed the said award on five grounds. Counsel for the appellants contended that the tribunal erred in assessing the income of the deceased at Rs. 1000/- 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. 5000/- per month. The tribunal erred in not considering the testimony of the PW2, Sh. Sohan Lal, who stated that the deceased was running a paan shop and was also selling juice in Raghbir Nagar, J.J. Colony and was having one servant also. The counsel further maintained that the tribunal erred in making the deduction to the extent of 1/3rd of the income of the deceased towards personal expenses when the deceased was supporting a large family at the time of accident and is survived by his mother and four brothers and sisters who were entirely dependent on the deceased as he was the sole bread earner of the family, thus the said deduction should be 1/4th towards personal expenses. The counsel further submitted that the tribunal erroneously applied the multiplier of 10 while computing compensation, while according to the facts and circumstances of the case multiplier of 18, the maximum, as per the IInd schedule 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 21 yrs of age only. 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 the 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. 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 @ 18% per annum in place of only 10% 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.

The Respondent No. 4, the insurance Company refuted the aforesaid stated contentions of the Learned Counsel for the appellant and submitted that the award is just, fair and reasonable in its entirety. Nobody, however appeared for Respondent Nos. 1 to 3.

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

The appellants claimants had brought on record the statement of the mother of the deceased, who deposed about his income stating that he was earning Rs. 2,500/- to 3,000/- and used to give her Rs 100/- daily for household purposes and higher amount on special occasions like family functions or marriage etc. Secondly, The appellants also brought on record the witness, PW2, Sh. Sunder Lal, who deposed that the deceased had kept a servant, Monto whom he used to pay Rs. 500/- P.M. The said witness PW2 also deposed that the deceased was running a paan shop and was also selling juice in Raghbir Nagar, J.J. Colony. He stated in his cross examination that the deceased was a BA II year student in Rajdhani College and used to sit at the aforesaid shop, which was in the name of his mother, after lunch. However, there is no cogent evidence proving the actual income of the deceased except for few bald statements by the relatives of the deceased. On perusal of the record, it is manifest that the deceased was studying in BA (Hons.), II year from Delhi University. The appellants have placed on record the educational certificates of the deceased. After considering all these factors I am of the view that the tribunal erred in assessing the income of the deceased at Rs. 1000/-. The income of the deceased should have been assessed as that of a matriculate as on 12th July 1991, i.e., the date of the accident and the same was Rs. 1118/- per month as per the minimum wages notified under Minimum Wages Act.

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.

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

However, it has been the consistent view of this Court that whenever aid of Minimum Wages Act is taken while computing income, then increase in minimum wages should also be considered. It is well settled that future prospects are not akin to increase in minimum wages. To neutralize increase in cost of living and price index, the minimum wages are increased from time to time. A perusal of the minimum wages notified under the Minimum Wages Act show that to neutralize increase in inflation and cost of living, minimum wages virtually double after every 10 years. Thus, it could safely be assumed that income of the deceased would have doubled in the next 10 years. Therefore, the tribunal erred in not considering increase in minimum wages, while assessing the income of the deceased and same should be considered while computing compensation towards loss of dependency.

As regards the contention of the counsel for the appellant that the 1/3rd deduction made by the tribunal are on the higher side as the deceased is survived by his mother and four brothers and sisters who where entirely dependent on the deceased as he was the sole bread earner of the family. 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 has erred in applying the multiplier of 10 in the facts and circumstances of the case, I feel that the tribunal has committed error. This case pertains to the year 1991 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 into force of the II schedule has risen to 18. The age of the deceased was 22 years at the time of the accident, his mother was aged 43 years, brother, Pradeep was of 13 years of age, sister Usha was of 26 years of age and is mentally unsound and unmarried and youngest brother was of 11-12 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, considering applicable multiplier MV Act & taking a balanced view, the multiplier of 13 shall be more appropriate.

As regards the issue of interest that the rate of interest of 10% 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 not/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, 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 @ 10% pa by the tribunal and the same is not interfered with.

On the contention regarding that the tribunal erred in not awarding non-pecuniary compensation to the appellants, I am of the view that the same should have been awarded by the tribunal. In this regard compensation towards loss of love and affection is awarded at Rs. 50,000/-; compensation towards funeral expenses is awarded at Rs. 5,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-.

As far as the contention of claiming award 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 are not conventional heads of damages.

On the basis of the discussion, the income of the deceased would come to Rs. 1677 after doubling Rs. 1118 to Rs. 2236 and after taking the mean of them. After making 1/3rd deductions the monthly loss of dependency comes to Rs. 1118 and the annual loss of dependency comes to Rs. 13416 per annum and after applying multiplier of 13 it comes to Rs. 1,74,408/-. Thus, the total loss of dependency comes to Rs. 1,74,408/-. After considering Rs. 65,000/-, which is awarded towards non-pecuniary damages, the total compensation comes out as Rs. 2,39,408/-.

In view of the above discussion, the total compensation is enhanced to Rs. 2,39,408/- from Rs. 56,280/- with interest @ 7.5% per annum on the enhanced compensation from the date of filing of the present petition till final realisation and the same should be paid to the appellant by the respondent insurance company. The enhanced compensation be apportioned amongst the appellants in the same ratio as done by the tribunal.

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