IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 152/1997 & FAO No. 225/97
Judgment reserved on 29.2.2008
Judgment delivered on: 20.4.2009
FAO 152/1997
Shri Vikas Jain & Ors. ..... Appellants.
Through: Mr. O P Mannie, Adv.
versus
Shri Madan Lal Banga & Ors. ..... Respondents
Through:
Judgment reserved on : 11.9.2008
FAO 225/97
Shri Madan Lal Banga & Anr ....... Appellants
Through: O.P.Goyal, Adv.
Versus
Shri Vikas Jain & Ors. ......... Respondents
Through: O P Mannie, 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
FAO 152/1997 & FAO 225/97 Page 1 of 12
KAILASH GAMBHIR, J.
1. The present appeal bearing FAO No. 225/97, whereby the
claimants seek enhancement arises out of the award dated
7.4.1997 of the Motor Accident Claims Tribunal whereby the
Tribunal awarded a sum of Rs. 3,02,860/- along with interest @
12% per annum to the claimants. The appeal bearing NO.
152/1997 is a cross appeal filed by the driver and owner of the
offending vehicle for setting aside of the impugned award. FAO
No. 225/97 is taken as the leading case.
2. The brief conspectus of the facts is as follows:
On 11.1.1988 at about 9.25 AM, deceased Shri Ajay Banga
while driving his Motorcycle was going to attend his official duties
with his employer and was driving the motor bike on the
University Road from Malka Ganj to mall Road side when
suddenly a Maruti Car No: DBC 4258 which was being driven by
Shri Vikas Jain came from opposite side i.e., Mall road side in a
rash and negligent manner on the right side against the traffic
rules and by his rash and negligent driving caused the serious
accident, so much so the motor bike driven by the deceased
FAO 152/1997 & FAO 225/97 Page 2 of 12
came into the wheel of the Maruti Car and the deceased was
removed to Hindu Rao Hospital where he expired on same day.
3. A claim petition was filed on 29.2.88 and an award was
passed on 7.4.1997. Aggrieved with the said award enhancement
is claimed by way of the present appeal.
4. Sh. O P Goyal, counsel for the appellants claimants
contended that the tribunal erred in assessing the income of the
deceased at Rs. 2,800/- 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. 4000/- per month.
The counsel further maintained that the tribunal erred in making
the deductions to the tune of 1/3rd of the income of the deceased
towards personal expenses when the deceased was a bachelor at
the time of accident and is survived by his parents. The counsel
submitted that the tribunal has erroneously applied the multiplier
of 9 while computing compensation when according to the facts
and circumstances of the case multiplier of 9 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
FAO 152/1997 & FAO 225/97 Page 3 of 12
more in near future as she was of 24 yrs of age only and would
have lived for another 40-50 yrs had she not met with the
accident. 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 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 @ 15% per annum in place of
only 12% 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. II 92006) ACC 36 (SC) Bijoy Kumar Dugan.
2. AIR 1972 SC 330.
3. AIR 1969 112, (DB) Bombay.
FAO 152/1997 & FAO 225/97 Page 4 of 12
5. Shri O.P. Mannie Counsel respondents No: 1 and 2 driver
and owner of the offending vehicle submitted that the award
passed by the learned Tribunal is unjust and unfair and requires
interference by this court and should be set aside. The counsel
submitted that the Tribunal erred in holding respondent nO. 1
negligent in the facts of the case when there was no material on
record to prove it. The counsel also urged that the appellant No.
1 father of the deceased was not dependent on the deceased and
was an earning member of the family, thus the Tribunal erred in
awarding compensation to him.
6. I have heard learned counsel for the parties and perused
the record.
7. The appellants claimants had brought on record Ex PW 4/2
to 4 to prove the salary of the deceased at Rs. 2665/- p.m. while
working with Food Specialities Ltd. After considering the same, I
am of the view that the tribunal has not erred in assessing the
income of the deceased at Rs. 2665/- p.m.
8. Therefore, no interference is made in relation to income of
the deceased by this court.
FAO 152/1997 & FAO 225/97 Page 5 of 12
9. As regards the future prospects I am of the view that there
is no material on record to award future prospects but still the
Tribunal awarded the same after considering that the deceased
died very young. 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 aged parents In catena of
cases the Apex Court has in similar circumstances made 1/3 rd
deductions. Therefore, I am not inclined to interfere with the
award on this ground.
11. As regards the contention of the counsel for the appellant
that the tribunal has erred in applying the multiplier of 9 in the
facts and circumstances of the case, I feel that the tribunal has
committed error. This case pertains to the year 1988 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
FAO 152/1997 & FAO 225/97 Page 6 of 12
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 was of 23 years of age at
the time of the accident and his parents were of 50 years and 44
years at that time. In the facts of the present case I am of the
view that after looking at the age of the claimants and the
deceased and after considering the applicable multiplier under
the II Schedule to the Motor Vehicle Act and taking a balanced
views, the multiplier of 11 should have been applied. Therefore,
in the facts of the instant case the multiplier of 11 shall be
applicable.
12. IN the cross appeal, Ld. Counsel for the appellant has
contended that accident took place due to the negligence of the
deceased himself and there was no material on record to hold R1
and R2 negligent.
13. As regards negligence, in N.K.V. Bros. (P) Ltd.Vs. M.
Karumai Ammal and Ors.- AIR 1980 SC 1354, (1980) 3 SCC
457; the Hon‟ble Apex Court observed as under:
The plea that the criminal case had ended in
acquittal and that, therefore, the civil suit must
follow suit, was rejected and rightly. The requirement
of culpable rashness Under Section 304-A I.P.C. isFAO 152/1997 & FAO 225/97 Page 7 of 12
more drastic than negligence sufficient under the law
of tort to create liability. The quantum of
compensation was moderately fixed and although
there was, perhaps a case for enhancement, the High
Court dismissed the cross claims also. Being
questions of fact, we are obviously unwilling to
reopen the holdings on culpability and compensation.
14. Furthermore, In Pushpabai Purshottam Udeshi v.
Ranjit Ginning & Pressing Co. (P) Ltd., (1977) 2 SCC
745, the Hon‟ble Apex Court explained the concept of res
ipsa loquitur and observed as under:
6. The normal rule is that it is for the plaintiff to
prove negligence but as in some cases considerable
hardship is caused to the plaintiff as the true cause
of the accident is not known to him but is solely
within the knowledge of the defendant who caused it,
the plaintiff can prove the accident but cannot prove
how it happened to establish negligence on the part
of the defendant. This hardship is sought to be
avoided by applying the principle of res ipsa loquitur.
The general purport of the words res ipsa loquitur is
that the accident “speaks for itself‟ or tells its own
story. There are cases in which the accident speaks
for itself so that it is sufficient for the plaintiff to
prove the accident and nothing more. It will then be
for the defendant to establish that the accident
happened due to some other cause than his own
negligence. Salmond on the Law of Torts (15th Edn.)
at p. 306 states: “The maxim res ipsa loquitur applies
whenever it is so improbable that such an accident
would have happened without the negligence of the
defendant that a reasonable jury could find without
further evidence that it was so caused”. In Halsbury‟s
Laws of England , 3rd Edn., Vol. 28, at p. 77, the
position is stated thus: “An exception to the general
rule that the burden of proof of the alleged
negligence is in the first instance on the plaintiff
occurs wherever the facts already established are
such that the proper and natural inference arising
from them is that the injury complained of wasFAO 152/1997 & FAO 225/97 Page 8 of 12
caused by the defendant‟s negligence, or where the
event charged a; negligence „tells it own story‟ of
negligence on the part of the defendant, the story so
told being clear and unambiguous”. Where the
maxim is applied the burden is on the defendant to
show either that in fact he was not negligent or that
the accident might more probably have happened in
a manner which did not connote negligence on his
part. For the application of the principle it must be
shown that the car was under the management of
the defendant and that the accident is such as in
ordinary course of things does not happen if those
who had the management used proper care.
15. It would be evident from the above and after considering
the facts and circumstances of the instant case that the
appellants had provided enough material by placing the accident
site plan Ex.PX3 on record for indulgence of the learned tribunal
on the application of the principle of res ipsa loquitur. In the
instant case, the appellants not only produced the site plan but
had also proved on record the FIR Ex. PW3/1; seizure of the
offending vehicle Ex. P4 & 5 etc. thus, there can be no confusion
that the driver of the offending vehicle was negligent and was
liable for the accident. The tribunal therefore committed no error
in holding that the appellants proved negligence of the offending
vehicle.
16. 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 15% p.a., I feel that the rate of
FAO 152/1997 & FAO 225/97 Page 9 of 12
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
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 @ 12% pa by the tribunal and the
same is not interfered with.
17. On the contention regarding that the tribunal has erred in
not granting adequate compensation towards loss of love &
affection, funeral expenses, loss of estate, 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 enhanced to Rs. 20,000/- compensation towards
FAO 152/1997 & FAO 225/97 Page 10 of
12
funeral expenses is enhanced to Rs. 10,000/- and compensation
towards loss of estate is enhanced to Rs. 10,000/-
18. As far as the contention pertaining to the awarding of
amount towards mental pain and sufferings caused to the
appellants due to the sudden demise of their 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 as the same are not
conventional heads of damages.
19. On the basis of the discussion, the income of the deceased
would come to Rs. 3,997.50 after doubling Rs. 2665/- to Rs.
5330/- and after taking the mean of them. After making 1/3 rd
deductions the monthly loss of dependency comes to Rs. 2665/-
and the annual loss of dependency comes to Rs. 31980/- per
annum and after applying multiplier of 11 it comes to Rs.
3,51,780/- Thus, the total loss of dependency comes to Rs.
3,51,780/- After considering Rs. 40,000/- which is granted
towards non-pecuniary damages, the total compensation comes
out as Rs. 3,91,780/-.
20. In view of the above discussion, the total compensation is
enhanced to Rs. 3,91,780/- from Rs. 3,02,860/- with interest @
FAO 152/1997 & FAO 225/97 Page 11 of
12
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. 1 and 2, who have joint and severally liability in
the same proportion as awarded by the Tribunal.
20.4.2009 KAILASH GAMBHIR, J.
FAO 152/1997 & FAO 225/97 Page 12 of
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