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2008 DIGILAW 715 (DEL)

Geeta v. New India Assurance Co. Ltd.

2008-07-28

KAILASH GAMBHIR

body2008
JUDGMENT Kailash Gambhir, J. 1. By way of the present appeal the appellants claimants seek to challenge the award dated 23.10.2003 so as to seek enhancement in the compensation amount over and above the amount of Rs. 3,60,000/- awarded by the Tribunal. 2. Brief summary of the facts are as under: On 26.9.1995 at about 8:30 p.m. the deceased Sh. Satish Kumar was coming from Najafgarh when reached Arjun Park near State Bank of India, Nagli Sakrawaton on Main Najafgarh Road, he got down from the auto rikshaw to purchase bidi and when he was coming back to the scooter, all of a sudden Sh. Raj Sharma respondent No. 2 started his autorikshaw. Sh. Satish was hit by the said auto rikshaw, as a result of which he received fatal injuries and was taken to DDU hospital where he was declared as brought dead. 3. Counsel assailed the award and submitted that the Tribunal erred in not taking salary of the deceased at Rs. 4,000/- per month when the same was duly proved on record. Counsel for appellants contended that wrong multiplier of 15 has been applied by the Tribunal although keeping in view the age of the deceased, the correct multiplier as per the Second Schedule of the Motor Vehicles Act is 18. The contention of the counsel for the appellant is that the deceased was a young man of 28 years and was survived by his widow and two minor children besides his father. Counsel thus contended that for the age between 25 to 30 years, the applicable multiplier is 18. 4. Another contention raised by the counsel for the appellant is that the appellants have unnecessarily been deprived of the interest for a period of six years. The contention of the counsel for the appellant is that it was mainly due to the delay caused by the respondents the matter got prolonged but for such delay the appellants have been deprived of the benefit of interest. The counsel also urged that the Tribunal ought to have awarded funeral expenses and damages towards mental pain and sufferings to the appellants. 5. Per contra, Mr. Pankaj Seth, counsel for the respondent submitted that the Tribunal has passed fair and reasonable award and urged that no grounds have been disclosed by the appellant calling for interference by this Court. 6. 5. Per contra, Mr. Pankaj Seth, counsel for the respondent submitted that the Tribunal has passed fair and reasonable award and urged that no grounds have been disclosed by the appellant calling for interference by this Court. 6. I have heard learned Counsel for the parties and perused the record. 7. The respondent insurance company had examined Sh. Raj Sharma, RW1, owner of the offending vehicle and employer of the deceased. The said witness deposed that the deceased was working as a driver on the offending TSR and was holding a valid driving licence. In his cross examination he stated that the deceased was paid a salary of Rs. 2,000/- and was also paid about Rs. 10-15 per day and was given dress on the occasion of Diwali. 8. 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. 9. 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. 10. On perusal of the record it is manifest that the tribunal took income of the deceased after considering Rs. 2,000/-pm as his salary and further considered future prospects and assessed the income of the deceased at Rs. 3,000/- pm. Without there being any proof as to the future prospects of the deceased and also, after considering that the deceased was in a private job, the income of the deceased was assessed by the tribunal as Rs. 3,000/- pm. The tribunal has already been lenient and generous in taking income at Rs. 3,000/- pm. I do not find any reason to enhance the income any further. 11. The accident in the present case had taken place on 26.9.1995 resulting into the death of one Mr. Satish Kumar at the age of 28 years. The Tribunal has applied multiplier of 15 but the applicable multiplier between the age of 25 - 30 as per the IInd Schedule of the Motor Vehicles Act, is 18. The Tribunal has not advanced any reason for deviating from the multiplier of 18. Satish Kumar at the age of 28 years. The Tribunal has applied multiplier of 15 but the applicable multiplier between the age of 25 - 30 as per the IInd Schedule of the Motor Vehicles Act, is 18. The Tribunal has not advanced any reason for deviating from the multiplier of 18. It is, no doubt, true that in the facts of a given case, Tribunals may not strictly go by the multiplier as laid down in the IInd Schedule of the Motor Vehicles Act, but then it is equally true that for such deviation, the Tribunal has to disclose sufficient reasons and exceptional circumstances. It is also a settled legal position that for applying dictum of any decision of the Apex Court or of the High Court there should be some similarity of facts between the case to be decided with the facts of the case on which reliance is being placed. It is true that in some cases, the Apex Court has reduced the multiplier as applicable to the deceased/victim of a particular age then such a reduction in the multiplier cannot be followed blindly like Euclids theorem in all the cases without examining all the relevant facts and circumstances taken into consideration by the Apex Court for reduction of the multiplier as laid down in the IInd Schedule of the Motor Vehicles Act. 12. No perceptible reasons have been given by the Tribunal so as to deviate from the multiplier of IInd Schedule in the impugned award and therefore, the multiplier of 15 as adopted by the Tribunal is raised to 18 in accordance with the IInd Schedule of the Motor Vehicles Act. 13. With regard to the other grievances raised by the appellant that the Tribunal has unnecessarily deprived the appellant from the benefit of interest for a period of six years on the ground that adjournments during the inquiry were taken at the instance of the appellant, I find that there is some merit in the submission of counsel for the appellant. In para 9 of the impugned award, the Tribunal itself observed that behavior of respondent No. 2 i.e, Mr. Raj Sharma, was quite erratic throughout the case and he even did not proceed from 15.1.2001 to 14.2.2002. 14. Perusal of the proceedings of the Tribunal does not clearly reveal that the appellants were instrumental in causing such a long delay of six years. Raj Sharma, was quite erratic throughout the case and he even did not proceed from 15.1.2001 to 14.2.2002. 14. Perusal of the proceedings of the Tribunal does not clearly reveal that the appellants were instrumental in causing such a long delay of six years. Indisputedly, the claimants can be deprived from claiming the benefit of interest if disposal of a claim petition takes place for want of due diligence, but then the Tribunal has to take into account the exact period which can be attributed to the claimants for causing such delay. 15. The claim petition filed before the Tribunal was fixed for final arguments for 4.12.2000 vide orders dated 3.11.2000 while the claim petition was registered on 14.11.1995. On 4.12.2000, request for adjournment was made by respondent No. 2. Therefore, on 15.1.2001, the matter was adjourned. Written arguments were filed by claimants/appellants on the next date of hearing on 15.11.2001 and the matter was reserved for orders. Before the orders could be pronounced, the appellant/claimants moved an application so as to bring on record one of the newly born legal heir of -claimant No. 1. Many dates were fixed after impleadment of the said legal heirs for different purposes. The record does not show that there was any kind of negligence or lapse on the part of the petitioner in not pursuing the matter. Even prior to 3.11.2000 also, nothing is borne out from the record to deprive the appellants from claiming the benefit of interest for such a long period of six years. 16. Findings of the Tribunal depriving the appellant from the benefit of interest on the award amount for Section period of six years is, thus, set aside. The appellant shall now be entitled to the differential amount along with up to date interest @ 6% per annum from the date of filing the claim petition till 31.12.2000 and @ 7% per annum from 1.1.2001 till final realization. 17. On the contention regarding that the tribunal has erred in not granting compensation towards non pecuniary damages, I feel that the tribunal erred in not awarding the same. 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. 18. 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. 18. As far as the contention pertaining to the award of amount towards mental pain and sufferings caused to the appellants due to the sudden demise of the deceased and the loss of services, which were being rendered by the deceased to the appellants is concerned, I do not feelinclined to award any amount as compensation towards the same as the same are not conventional heads of damages. 19. On the basis of the aforesaid discussion, the income of the deceased would come to Rs. 3,000/-. After making 1/3rd deductions the monthly loss of dependency comes to Rs. 2,000/- and the annual, loss of dependency comes to Rs. 24,000/- per annum and after applying multiplier of 18 it comes to Rs. 4,32,000/-. Thus, the total loss of dependency comes to Rs. 4,32,000/-. After considering Rs. 1,00,000/-, which is granted towards non-pecuniary damages, the total compensation comes out as Rs. 5,32,000/-. 20. In view of the above discussion, the total compensation is enhanced to Rs. 5,32,000/- from Rs. 3,60,000/-. The differential amount shall be paid with interest @ 6% per annum from the date of filing of the petition till 31/12/2000 & @ 7% p.a. from 1.1.2001 till final realisation and the same should be paid to the appellants by the respondent insurance company. 21. With the above direction, the present appeal is remanded back to the tribunal for apportionment of the differential amount in favour of the appellants claimants.