Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 738 (DEL)

NATIONAL INSURANCE CO. LTD. v. KUSUM MISHRA

2008-08-04

KAILASH GAMBHIR

body2008
JUDGMENT : Kailash Gambhir, J. 1. By way of the present appeal, the appellant seeks to challenge the impugned award dated 18.5.2005 mainly on the ground that the amount of compensation awarded by the Tribunal is quite excessive and exorbitant and totally unrelated to the claim set up and proved by the respondents-claimants. In brief, the facts of the case are that on 24.11.2000 at about 11 p.m. the deceased Hem Chandra Mishra was going on the two-wheeler scooter towards Karala on the road from Avantika to Karala and when he reached in front of Brahm Shakti Hospital on Budh Vihar-Kanjhawala Road, Delhi, the truck bearing registration No. DIL 220 which was being driven at a very fast speed, in a rash and negligent manner and on the wrong side of the road, came and hit the two-wheeler scooter bearing registration No. DL 8S-K 0270 of the deceased from the front side and Mishra fell down and the wheel of the truck ran over his head and he died on the spot. The accident occurred on account of rash and negligent driving of the truck driver as per the claim petition. 2. Ms. Neerja Sachdeva, counsel for the appellant contended that the Tribunal has granted future increase merely on the assumption that within a span of 20 years, the salary of the deceased would increase to Rs. 24,000 per month and then has taken the average income of the deceased at Rs. 15,000 per month by taking the mean of income of Rs. 6,604 which he was earning at the time of accident and Rs. 24,000. The contention of learned Counsel for the appellant was that the deceased was working on the post of assistant typist in DDA and his net income on record with all allowances after deductions was proved at Rs. 6,604 but without there being any evidence on record, Tribunal itself assumed that the deceased had bright chances of being promoted as typist and thereafter senior typist and ultimately may be a personal assistant and the deceased being of 37 years of age during the span of almost 20 years till the end of his service at retirement would have been earning at least Rs. 24,000 per month. Counsel, thus, contended that Tribunal at the most, could have applied the criteria laid down in Smt. Sarla Dixit and another Vs. 24,000 per month. Counsel, thus, contended that Tribunal at the most, could have applied the criteria laid down in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, so as to grant benefit of future increase and not in a whimsical manner as has been done by the Tribunal in the present case. Learned Counsel, thus, sought to urge that if the method of calculation as prescribed in the case of Smt. Sarla Dixit and another Vs. Balwant Yadav and others, is taken into consideration then the meagre amount of Rs. 10,000 shall come out as the monthly dependency. Another grievance raised by the appellant is that the Tribunal has granted excess rate of interest at the rate of 12 per cent per annum from the date of institution till 31.12.2001 and even thereafter at the rate of 9 per cent till the date of passing of the award. The contention of learned Counsel for the appellant is that grant of said excess interest rate is against the settled law laid down by the Hon'ble Apex Court in various pronouncements wherein prevailing banking rate as applicable on the relevant date is usually taken into consideration. Even multiplier of 16 applied by the Tribunal as per the counsel for the appellant is on the higher side. Contention of learned Counsel for the appellant is that the deceased in the present case was of 37 years of age while in Sarla Dixit's case (supra), the deceased was of 27 years of age but still the Apex Court applied multiplier of 15. Counsel also contended that there is no hard and fast rule and according to the facts and circumstances of the case, multiplier can also be reduced correspondingly not strictly as laid down under the Schedule to the Motor Vehicles Act. 3. Mr. D.K. Mishra, counsel for the respondents on the other hand contended that the Tribunal rightly appreciated the facts of the case and correctly applied the law of the land and, therefore, no fault can be found with the findings given by the Tribunal. Contention of learned Counsel for the respondents is that respondents-claimants have duly proved on record the entitlement of the deceased at least to increase in the wages in accordance with the recommendations made by the Fifth Pay Commission, the counsel submitted that the pay scale of Rs. Contention of learned Counsel for the respondents is that respondents-claimants have duly proved on record the entitlement of the deceased at least to increase in the wages in accordance with the recommendations made by the Fifth Pay Commission, the counsel submitted that the pay scale of Rs. 950-15-25-1,400 was revised as a result of recommendations of Fifth Pay Commission up to Rs. 3,050-75-3,950-80-4,590. Counsel for the respondent further submitted that the respondents proved the said revision in the pay scale of deceased by placing and proving on record the statement of fixation of pay due to the revision in salary, through the findings of Randhir Singh, clerk in Accounts Department of the employer of deceased, i.e., DDA. Counsel, thus, contended that average income of the deceased has been calculated on the basis of the evidence led by the respondents and, therefore, in all such cases where future earnings has been duly established on record there is no hard and fast rule that necessarily criteria as laid down in Sarla Dixit's case (supra) invariably has to be applied. 4. I have heard counsel for the parties and perused the record. As regards the contention of the appellant that the Tribunal erred in considering future prospects, I feel that when as per the facts and circumstances of the case, nothing was placed on the record to prove the future prospects of the deceased, therefore, the Tribunal erred in awarding the same. Ranbir Singh, UDC from the Department of Accounts (Pension Branch), DDA, deposed as PW 3 and exhibited the salary certificate of the deceased as Exh. PW3/2, according to which, the salary of deceased at the time of the accident was Rs. 6,604 per month. On perusal of the award, it is apparent that he did not depose anything pertaining to the future prospects of the deceased. No other witness was examined in this regard by respondents-claimants. It is only the claimant, wife of the deceased, who stated in her evidence by way of affidavit that the deceased had bright future prospects. It is no more res Integra that mere bald averments regarding the future prospects can be of no help to the claimants in the absence of any cogent evidence regarding it. The Hon'ble Apex Court in Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, observed as under: (8) .. It is no more res Integra that mere bald averments regarding the future prospects can be of no help to the claimants in the absence of any cogent evidence regarding it. The Hon'ble Apex Court in Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, observed as under: (8) .. .The mere assertion of the claimants that deceased would have earned more than Rs. 8,000 to Rs. 10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before M.A.C.T. The claimants have to prove that the deceased was in trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be.... 5. In view of the foregoing discussion and considering the submission of the counsel for the appellant that at the most criteria laid down in Sarla Dixit's case (supra), could be applied, I feel that the criteria laid in Sarla Dixit's case (supra) is applicable in the instant case. As regards the contention of the counsel for the appellant that the Tribunal has erred in applying the multiplier of 16 in the facts and circumstances of the case, I feel that the Tribunal has committed no error. This case pertains to the year 2000 and by that time Second Schedule to the Motor Vehicles Act became the guiding factor to determine the multiplier. The said Schedule came on the statute book in the year 1994 and according to it the maximum multiplier of 18 could be applied by the courts. The deceased was of 37 years of age and is survived by his widow, aged father and two children. In the facts of the present case, I am of the view that after looking at the age of the claimants and the deceased, multiplier of 16 as applied by the Tribunal, in accordance with the Second Schedule, is just and fair. Therefore, in the facts of the instant case, no interference is made in the award on this count. 6. Therefore, in the facts of the instant case, no interference is made in the award on this count. 6. As regards the issue of interest that the rate of interest of 9 per cent per annum awarded by the Tribunal is on the higher side and the same should be reduced to 6 per cent per annum, I feel that the rate of interest awarded by the Tribunal is just and fair and requires no interference. No particular rate of interest has been 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 Apex 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 into consideration relevant factors including inflation, change of economy, 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 at the rate of 9 per cent per annum by the Tribunal and the same is not interfered with. 7. On the basis of the foregoing discussion, the income of the deceased would come to Rs. 9,906 and after making 1/3rd deduction the monthly loss of dependency comes to Rs. 6,604 and the annual loss of dependency comes to Rs. 79,248 and after applying multiplier of 16 it comes to Rs. 12,67,968. Thus, the total loss of dependency comes to Rs. 12,67,968. After considering Rs. 1,10,000 which is granted towards general damages, the total compensation comes out as Rs. 13,77,968. In view of the above discussion, total compensation is reduced to Rs. 13,77,968 from Rs. 20,30,000. 8. This Court vide order dated 24.8.2005 had directed appellant to deposit 50 per cent of the awarded amount together with interest as per the award with the M.A.C.T. within 2 weeks from the date of order and had stayed the operation of the impugned award dated 18.5.2005. This Court also gave permission to the respondent Nos. 1 and 2 to withdraw the said amount on furnishing personal restitution security. This Court also gave permission to the respondent Nos. 1 and 2 to withdraw the said amount on furnishing personal restitution security. In case the said 50 per cent of the award amount was withdrawn by the respondents, then the balance amount, if any, shall be paid by the appellant along with the interest as already awarded by the Tribunal. With these directions, the appeal is disposed of.