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Judgment
Kailash Gambhir, J.—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.
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 came into the wheel of the Maruti Car and the deceased was removed to Hindu Rao Hospital where he expired on same day.
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.
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 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:
II (2006) ACC 36 (SC) Bijoy Kumar Dugan.
AIR 1972 SC 330.
AIR 1969 112, (DB) Bombay.
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.
I have heard learned Counsel for the parties and perused the record.
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.
Therefore, no interference is made in relation to income of the deceased by this Court.
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.
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 1/3rd deductions. Therefore, I am not inclined to interfere with the award on this ground.
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 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.
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.
As regards negligence, in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Others, ; 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 u/s 304-A I.P.C. is 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.
Furthermore, In Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, the Hon''ble Apex Court explained the concept of res ipsa loquitur and observed as under:
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 was 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.
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.
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 interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is 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 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.
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 funeral expenses is enhanced to Rs. 10,000/- and compensation towards loss of estate is enhanced to Rs. 10,000/-
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.
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 1/3rd 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/-.
In view of the above discussion, the total compensation is enhanced to Rs. 3,91,780/- from Rs. 3,02,860/- 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. 1 and 2, who have joint and severally liability in the same proportion as awarded by the Tribunal.