IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 164/90
Judgment reserved on : 1.4.2008
Judgment delivered on: 20.4.2009
Smt. Sandhya Khandelwal & Anr. ..... Appellants.
Through: Mr. V P Chaudhary, Sr.
Advocate wth Ms.
Sushma Sachdev for the
appellant.
versus
Kanahiya Lal. & Ors. ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
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 20.3.1990
of the Motor Accident Claims Tribunal whereby the Tribunal
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awarded a sum of Rs. 4,00,000/- along with interest @ 9% per
annum to the claimants.
2. The brief conspectus of the facts is as follows:
3. On 9.9.1986 at about 7.30 AM one Shri S N Khandelwal
while driving two wheeler scooter bearing registration No: DIK
9397 commenced journey from his residence situated at Kothi
No: 8, Sector-IV Urban Estate Gurgaon to attend meeting of
Bharat Scouts and Guides to be held at New Delhi. At about 8.00
AM the said Shri Khandelwal was proceeding on the extreme left
side on Gurgaon Road near Samalka. At that very time a truck
bearing registration No: RRR 5697 driven by its driver at high
speed, rashly and negligently came from behind. The front left
hand portion of the truck struck against the rear of the scooter.
On account of forceful impact the scooter alongwith the
scooterist was thrown ahead on the road. Thereafter, the front
wheel of the truck passed over the head of the scooterist. The
truck came to stop after travelling a distance of about 40 paces.
The facts relating to the accident speak for itself that the
accident in question was caused on account of absolute
negligence on the part of the driver of the truck.
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4. A claim petition was filed on 12.11.1986 and an award was
passed on 20.3.1990. Aggrieved with the said award
enhancement is claimed by way of the present appeal.
5. Sh. Nitinjya Chaudhary counsel for the appellants
contended that the tribunal erred in assessing the income of the
deceased at Rs. 4,678.80/- per months and same should be
enhanced. The counsel further maintained that the tribunal erred
in making the deduction to the tune 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 widow, five children and aged mother. The counsel
submitted that the tribunal erroneously applied the multiplier of
10 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 50 yrs of age only and would
have lived for another 20-30 yrs had he not met with the
FAO No. 164/90 Page 3 of 9
accident. It was also contended 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 her 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
should have allowed simple interest @ 12% per annum in place of
only 9% 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 counsel
has relied on following judgments in support of his contentions:
1. General Manager, Kerala State Road Transport
Corporation Vs. Sushamma Thomas & Ors. 1994 ACJ
1.
2. UP State Road Transport Vs. Trilok Chandra 1996 ACJ
831.
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3. Mohd. Shafi Vs. Om Metal & Minerals (P) Ltd. & Ors.
2005 ACJ 1651.
4. Rani Vs. Sahabuddin & Ors. 2006 ACJ 837.
5. Baldev Kaur Vs. State of Haryana 2006 ACJ 599.
6. Shri Kanwal Chaudhary, counsel for respondent No. 3
submitted that the award passed by the ld. Tribunal is just and
fair and requires no interference by this court.
7. I have heard learned counsel for the parties and perused
the record.
8. The appellant No: 1 wife of the deceased examined herself
as PW-6 and deposed that the deceased was her husband and
was of 50 years of age at the time of his death. She stated that
he was working in Kendriya Vidhyala Sangathan and was earning
Rs. 4678.80/- per month. She has brought on record original
education documents of the deceased. After considering all these
factors I am of the view that the tribunal has not erred in
assessing the income of the deceased at Rs.4678.80/-. Therefore,
no interference is warranted.
FAO No. 164/90 Page 5 of 9
9. 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 granting future
prospects in the facts and circumstances of the case.
10. 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 widow, five children and
mother. I feel that the interest of justice would be best served if
the 1/5th deduction is made considering that the deceased is
survived by his widow, five children and mother. Therefore, the
award is modified in this regard.
11. As regards the contention of the counsel for the appellant
that the tribunal erred in applying the multiplier of 10 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
FAO No. 164/90 Page 6 of 9
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 was of 50 years of age at
the time of his death and is survived by his widow, five children
and mother. 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 10 as applied by the tribunal is just and fair.
Therefore, no interference is made in the award.
12. As regards the issue of interest that the rate of interest of
9% p.a. awarded by the tribunal is on the lower side and the
same should be enhanced to 12% 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
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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 @ 9% pa by the tribunal and the
same is not interfered with.
13. On the contention regarding that the tribunal has erred in
not granting 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 compensation towards loss of love and
affection is awarded at Rs. 30,000/-; compensation towards
funeral expenses is awarded at 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. Therefore, total
loss of dependency comes to Rs. 4,49,164.80 (4678.80 x 4/5 x 12
x 10).
14. After considering Rs. 1,00,000/- which is granted towards
non-pecuniary damages, the total compensation comes out to
Rs. 5,49,165/-.
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15. In view of the above discussion, the total compensation is
enhanced to Rs. 5,49,165/- from Rs. 4,00,000/- with interest @
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
respondents No. 3 in the same proportion as awarded by the
Tribunal.
16. With the above direction, the present appeal is disposed of.
20.4.2009 KAILASH GAMBHIR, J.
FAO No. 164/90 Page 9 of 9