Delhi High Court High Court

Smt.Sandhya Khandelwal & Anr vs Kanahiya Lal & Ors. on 20 April, 2009

Delhi High Court
Smt.Sandhya Khandelwal & Anr vs Kanahiya Lal & Ors. on 20 April, 2009
Author: Kailash Gambhir
      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

FAO No. 164/90 Page 1 of 9
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.

FAO No. 164/90 Page 2 of 9

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.

FAO No. 164/90 Page 4 of 9

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

FAO No. 164/90 Page 7 of 9
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/-.

FAO No. 164/90 Page 8 of 9

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.




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