IN THE HIGH COURT OF DELHI AT NEW DELHI MAC. App. 1007-08/2006 Judgment reserved on: October 09, 2007 Judgment delivered on: February 20, 2008 Sh. Narinder Bishal & Anr. ..... Appellants Through: Mr.O.P. Mannie, Advocate. versus Sh.Rambir Singh & Ors. ..... Respondents Through: Mr.P.K. Seth, Advocate. Mr.S.L. Gupta, Advocate for respondent No.3. Mr.Arvind Kumar, Advocate for respondent Nos.4 & 5. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. The present appeal is preferred against the award dated 17th August, 2006 of the Motor Accident Claims Tribunal, whereby the Tribunal awarded a sum of Rs. 2,01,400/- along with MAC. App. 1007-08/2006 Page 1 of 42 interest @ 7.5% per annum to the appellant. The factual scenario in nutshell is as follows: On 6th July, 1999 at about 2 pm Sh. Pragati Bishal along with Ms. Shilpi Chaudhary was traveling in his two-wheeler scooter and were proceeding towards Rohini. When they reached Road No. 41, Opposite Gautam Hospital, Wazirpur Depot Road, Delhi, the scooter was hit from behind by a tempo bearing registration no. DDL 6850 driven in a very rash and negligent manner by the driver Sh. Munish as a result of which Sh. Pragati Bishal fell on the road. At that point of time a bus bearing registration no. DL 1P A 1046 which was being driven by Sh. Ranbir Singh came from behind and ran over the deceased, who succumbed to his injuries and died on the spot. Consequent to this, a claim petition was filed before the Motor Accident Claims Tribunal on 11th November, 1999 by the mother and father of the deceased, appellants herein. Aggrieved with the award of the learned Claims Tribunal the present appeal has been preferred by the appellants. Sh. O.P. Mannie, learned counsel for the appellants has assailed the quantum of compensation awarded in the impugned award and has claimed enhancement in compensation. The Counsel MAC. App. 1007-08/2006 Page 2 of 42 contended that the deceased was a bachelor, hail and hearty and was of 21 years of age. He had qualified Higher Secondary Exams and was pursuing graduation through correspondence. He was also a diploma holder in both, computers and business accountancy. At the time of the accident, he was also doing accounts work and was teaching computer course to some students at his house where he had installed three computers and was earning around Rs.10,000/- to Rs.12,000/- per month out of which Rs. 6,000 per month, he was contributing towards household expenses. The counsel contended that ignoring all these, the tribunal has erroneously determined the income of the deceased on the basis of minimum wages of a matriculate workman at Rs. 2,796 per month. The counsel further contended that the learned tribunal erred in not noticing that the minimum wages are revised twice in a year and that at the time of pronouncement of the judgment i.e. 17/08/2006, the minimum wages for a matriculate were Rs. 3,760 per month. The second contention of the counsel was that the future prospects of the deceased were not considered even though the deceased was a diploma holder in both, computers and business accountancy and at the time of the accident, he was also doing accounts work and MAC. App. 1007-08/2006 Page 3 of 42 was teaching computers to some students. It was also contended that the tribunal did not consider the increase in earnings of the deceased and the fact of the value of rupee denunciating due to high rates of inflation. The counsel urged that the learned tribunal had committed grave error in not only taking minimum wages as the basis of the income of the deceased but by also deducting 2/3rd towards personal expenses of the deceased after perceived marriage of the deceased for the multiplier of 6. The counsel vehemently contended that the tribunal failed to appreciate the fact that in all probability the deceased would have married a working girl and she would also have contributed to support the appellants. The counsel raised another contention stating that the multiplier of 13 applied by the tribunal is on the lower side and the tribunal should have applied multiplier of 15 for the reason that the appellant no. 1 was of 52 years of age and appellant no. 2 of 42 years of age and average age of the appellants being 47 years at the time of the death of their son. The counsel pointed out that the tribunal has awarded a meagre amount of Rs. 10,000 and Rs. 5,000 towards loss of love and affection and funeral expenses, respectively. The counsel urged that knowing that the MAC. App. 1007-08/2006 Page 4 of 42 deceased was the only son of the appellants/claimants, the tribunal should have awarded at least Rs. 1 Lac towards loss of love and affection. It was also pointed out by the counsel that nothing has been awarded by the tribunal towards shock, mental torture and agony suffered by the appellants on account of sudden and premature death of their son. Finally, the counsel rounded on the impugned award to contend that the rate of interest awarded by the learned tribunal @ 7.5% per annum was on a lower side and the tribunal ought to have awarded interest @ 18% per annum. The counsel for the appellant has relied upon following judgements in support of his contentions. (1)Arun Sodhi vs. Delhi Transport Corporation – I (2001) ACC 615; (2)New India Assurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors. – 2007 (3) TAC 414 (Del); (3)H.S. Ahammed Hussain vs. Irfan Ahammed & Anr. – 2002 ACJ 1559 (SC); (4)Fakeerappa & Anr. Vs. Karnataka Cement Pipe Factory & Ors. – 2004 III AD 373 (SC) MAC. App. 1007-08/2006 Page 5 of 42 (5)Unreported judgment in MAC. App. No.40/2004 and Cross Objection /2004 dated 25.1.2007 Per contra, Sh. S.L. Gupta, counsel for Respondent no. 3, Sh. Arvind Kumar, counsel for Respondent nos. 4 & 5 and Sh. P.K. Seth, counsel for Respondent no. 6 have vehemently traversed the said contentions of the counsel for appellants. The Counsel for Respondent No. 3, Sh. S.L. Gupta, submitted that the learned tribunal committed no error in awarding a sum of Rs. 2,01,400 along with the interest @ 7.5% to the appellants. The counsel also contended that the impugned award is quite fair, just and reasonable, therefore, requires no interference. The counsel further contended that the tribunal had correctly applied its judicial mind by not allowing any compensation towards future prospects of the deceased, in the absence of any cogent evidence to show entitlement to such future prospects of the deceased. The Counsel has relied on the judgment of Bijoy Kumar Dugar vs. Bidyadhar Dutt reported in (2006) 3 SCC 242, in this regard. The counsel lashed out that the impugned award is already on the higher side and cannot be enhanced any further. I have heard learned counsel for the parties and have MAC. App. 1007-08/2006 Page 6 of 42 perused the record. The first contention of counsel for the appellant is that the Tribunal has erred in correctly assessing the income of the deceased by taking into consideration the minimum wages of a matriculate workman at the rate of Rs.2,796/- per month, while in fact the deceased was actually earning Rs.6,000/- per month. In support of this contention, the counsel has placed reliance on the judgments of this Court reported in 2007 3 TAC 414 Delhi, New India Assurance Company Vs. Smt. Nirmala Devi and Ors. and an unreported judgment in the case of MAC. App. No.40/2004 decided on 25.1.2007 and another judgment MAC. App. No.350/2007, Oriental Insurance Co. Ltd. Vs. Satish Sharma and Ors. In these judgments Justice Pradeep Nandrajog has taken a view that for deciding the income of the deceased in the absence of any cogent evidence recourse should be made to the income of skilled/unskilled/semi skilled workman, as the case may be, as specified in the Minimum Wages Act on the relevant date and also to consider the increase of the minimum wages from time to time as notified under the Minimum Wages Act. The Court held that the perusal of the minimum wages notified under the Minimum Wages Act show that the MAC. App. 1007-08/2006 Page 7 of 42 minimum wages gets increased by nearly 150% in 10 years. The Court further observed that the raise in the minimum wages is carried out by the government to neutralize increase in inflation, cost of living and fall in purchasing power of rupee. The Court also observed that increase in minimum wages is not akin to future prospects for the reason that inflation eats into the purchasing power of the rupee and to neutralize this falling power of rupee, the wages are increased from time to time. Toying the same line of argument, counsel for the insurance company has vehemently urged that since the appellants had failed to give any proof regarding the income of the deceased, therefore, under no circumstance, the income of the deceased could have been considered by the Tribunal at the rate of Rs.6,000/- per month, therefore, in the absence of any evidence to this effect, the finding of the Tribunal to hold the income of the deceased as per the Minimum Wages Act at Rs.2,796/- cannot be faulted as perverse or illegal. Counsel further contended that in view of the recent decision of the Supreme Court reported in 2006 ACJ 1058, Bijoy Kumar Dugar Vs. Bidyadhar Dutt, the future prospects of the deceased in the absence of any evidence on record, cannot be taken into MAC. App. 1007-08/2006 Page 8 of 42 consideration. Counsel, thus, contended that the increase of minimum wages as laid down under the Minimum Wages Act cannot be considered by this Court unless a specific evidence to this effect is led and proved by the appellants. It is true that in the present case, the appellants have not led any evidence to prove the exact income of the deceased and only evidence which was led before the Tribunal was that the deceased was doing his graduation course at the time of the accident. In this regard, the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428 has given following observations:- “It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis--vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral MAC. App. 1007-08/2006 Page 9 of 42 evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.” The case set up by the appellants in the claims petition was that the deceased was studying and was also teaching computer to students for which he had installed 3 computers at his home and was charging about Rs.1,000/- per month from each student. It was also pleaded in the petition that he used to pay Rs.6,000/- towards household expenses and was having 10 to 12 students for computer training. It is not in dispute that no evidence to this effect was led by the appellants to prove the said income of the deceased and this is evident from the following observations of the Tribunal:- “In the absence of any proof of the income of the deceased, the minimum wage of a matriculate workman at the time of accident can be taken as income of the deceased. The minimum wages of matriculate workman on the date of accident was Rs.2,796/-.” It would be, thus, apparent that in the given circumstances, the Tribunal has resorted to the minimum wages of a matriculate workman as were applicable on the date of MAC. App. 1007-08/2006 Page 10 of 42 accident since no evidence was adduced by the appellants to prove the income of the deceased. In such like cases, the Motor Accident Claims Tribunals are left with no option but to derive support from the Minimum Wages Act to determine the income of the deceased and I do not find any infirmity in such an approach. In the facts of a given case and in the absence of any cogent evidence regarding proof of income, the Tribunal can very well take into consideration the qualification of the deceased, the nature of activity he was performing or has acquired any specialized or technical knowledge or any other special merit in any particular field in order to determine the category of nature of his avocation whether of a skilled, semi-skilled or of an unskilled nature. I, therefore, do not find any infirmity in the impugned award so far taking the monthly income of the deceased at Rs.2,796/- as prevalent on the relevant date of the tragic accident by the Tribunal is considered. As regards the plea of the appellant to consider the revision of minimum wages of the deceased after taking into consideration such increase under the Minimum Wages Act, which show such wages virtually becoming double after a gap of 10 MAC. App. 1007-08/2006 Page 11 of 42 years period. This contention of counsel for the appellant is repelled by counsel appearing for the respondent on the strength of the Apex Court's judgment reported in Bijoy Kumar Dugar's case (Supra) that in the absence of any evidence regarding future prospects, the future prospects cannot be taken into consideration. In most of the recent appeals, this controversy has become a bone of contention between the claimants as well as the insurance companies. In Bijoy Kumar Dugar's case (Supra), the Apex Court was dealing with the case of a student, science graduate, pursuing his law studies and who at the relevant time was earning a sum of Rs.4,000/- per month as an attorney holder of some petrol pump and in the said case, the contention was raised that the deceased would have earned minimum wages of Rs.8,000/- or Rs.10,000/- per month, if not, more, had he not died in the accident. No evidence was adduced by the claimants in the said case to prove how the deceased would have earned the said income of Rs.8,000/- to Rs.10,000/- per month. In the backdrop of facts of the said case, the Supreme Court held that the bald assertion of the claimants that the deceased would have earned Rs.8,000/- to Rs.10,000/- per month in the span of his life time had he not met with the accident MAC. App. 1007-08/2006 Page 12 of 42 cannot be accepted as his legitimate income unless the facts are proved by leading cogent and reliable evidence before the MACT. It would be relevant to refer to the observations of the Supreme Court in the said judgment, which are reproduced as under:- “8. The mere assertion of the claimants that the deceased would have earned more than Rs 8000 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 MACT. The claimants have to prove that the deceased was in a 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.” In the above judgment, the Supreme Court has also considered the case of General Manager, Kerala Transport Road Corporation Vs. Susamma Thomas, 1994 ACJ 1(SC), wherein the claimants had satisfactorily proved on record the prospects of the deceased concerning his advancement in his future career therefore, taking into consideration the said aspect of future career, the Court had made highest estimate of his income and then granted the relief to the claimants. The Apex Court has also considered in the aforesaid judgment, the MAC. App. 1007-08/2006 Page 13 of 42 celebrated judgment of Sarla Dixit vs. Balwant Yadav & Ors. reported in 1996 (III) AD 13(SC) in which also enough evidence was led with regard to the future prospects of the deceased. After considering the above said cases, the Hon'ble Supreme Court in Bijoy Kumar Dugar's case observed that no evidence was led by the claimants to prove the future prospects regarding increase of income in the course of his employment or business or profession, therefore, the aspect of future prospects could not be considered. The legal position after the judgment of Bijoy Kumar Dugar's case thus emerges that where the claimants are able to establish and sufficiently prove the future prospects of the deceased in the course of his employment or business or profession the criteria as laid down in Sarla Dixit's case can be made applicable as in the said criteria, there is an inbuilt mechanism of taking into account the future prospects of the deceased, while in other cases in the absence of any evidence, the said criteria of Sarla Dixit's case cannot be adhered to and a normal method of calculating the income of the deceased with an appropriate multiplier after deducting the personal expenses out of the total income to assess the exact loss of dependancy can be arrived at. For determining the earning of the deceased MAC. App. 1007-08/2006 Page 14 of 42 or victim of the accident, the claimants are supposed to prove the exact income of the deceased by leading some cogent and reliable documentary evidence as to the nature of his employment or trade or business or in any other activity he was involved in and then the said income can be taken into consideration for determining the quantum of compensation and if in such a case, the claimants are further able to establish the future prospects as well, then the criteria laid down in Sarla Dixit's case would get attracted. There can be another category of cases where the claimants are able to establish the future prospects of the deceased by quantifying the amount to be earned by the deceased in future with the help of cogent, reliable and convincing evidence and in all such cases the tribunal can take into consideration such future increase as has been established by the claimants on record. The difficulty however, would arise in all those cases where although the claimants are able to sufficiently establish on record the educational qualification of the deceased or the nature of his employment whether skilled, semi-skilled or unskilled but fail to establish by any reliable evidence to prove the exact income of the deceased. In such cases, question arises whether the Tribunal can take into MAC. App. 1007-08/2006 Page 15 of 42 consideration the minimum wages and the periodical revision of minimum wages as are fixed by the Government under the Minimum Wages Act. To examine this question, it will have to be considered whether the revision which takes place under the Minimum Wages Act can be equated with the future prospects of a deceased. As would be evident from catena of judgments of the Supreme Court, the future prospects have no correlation with the price index, inflation or denunciation of currency value. The future prospects would necessarily mean advancement in future career, earnings and progression in one's life. It could be considered by seeing, from which post a person began his career, what avenues or prospects he has while being in a particular avocation and what targets he/she would finally achieve at the end of his career. The promotional avenues, career progression, grant of selection grades etc. are some of the broad features for considering one's future prospects in one's career. The minimum wage, in the very context of economy has a correlation with the growth and development of the nation's economy, postulating increase in the price index, reduction of purchasing power with the denunciation of currency value and consequent fixation of minimum wages giving some periodical MAC. App. 1007-08/2006 Page 16 of 42 increase so as to ensure sustenance and survival of the workman class. Keeping this in view, under no circumstance the revision of minimum wages can be treated on the same footing with the factor of future prospects. For instance, minimum wages of unskilled workman in the year 2000 were Rs.2524/- under the Minimum Wages Act. The said minimum wages in the year 2007 for the same class of unskilled workman came to be Rs.3470/- under the Act. This increase is not due to any promotion of unskilled workman or any kind of advancement in his career but the same are due to increase in the price index and cost of living which are the determining factors taken into consideration for increasing the wages under the Minimum Wages Act. The nature of the job of unskilled workman will not change as the same shall remain unchanged. The same principle may be true even in the case of business or trade or other such allied activities where the future prospects of the deceased can be considered on the basis of his assets, income tax return, wealth tax return, balance sheet etc. But as far as the increase in the minimum wages is concerned the same takes into consideration the price index and the inflationary trends and the same have no correlation with the future prospects MAC. App. 1007-08/2006 Page 17 of 42 of a skilled, semi-skilled or an unskilled workman. In the light of the above discussion, I find myself in agreement with the argument of counsel for the appellants that in the given facts and circumstances of the case, the Tribunal ought to have taken into consideration the revision in the minimum wages so as to determine just and fair compensation. In all cases where the claimants are able to sufficiently establish the income of the deceased, the benefit of granting any compensation for future prospects can be taken into consideration only when sufficient and reliable evidence is placed and proved by the claimants as per the dictum laid down in Bijoy Kumar Dugar's case(supra). While in other cases where in the absence of sufficient evidence, the Tribunal applies the yardstick of minimum wages, in all such cases, the Tribunals can take judicial notice of the revision of minimum wages, as laid down under the Minimum Wages Act. As regards, the second contention of counsel for the appellants that the Tribunal has committed grave error in taking into consideration deduction of personal expenses to the extent of 2/3rd of the income of the deceased on the presumption that he would have got married at the age of 27 years had he not died in MAC. App. 1007-08/2006 Page 18 of 42 the accident leaving back only 1/3rd of the income for the dependant members of the family. The contention of counsel for the appellant is that the deceased could have even married a working girl which ultimately would have increased the contribution towards the dependant family members instead the same being reduced. In support of this argument, counsel for the appellant has placed reliance on the