FAO No. 1507 of 2015 (O&M) and -1- FAO No. 4236 of 2015 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1507 of 2015 (O&M) Date of Decision: December 09, 2019 [ENTITY] Appellants(s) Versus Smt. [ENTITY] and others Respondent(s) with FAO No. 4236 of 2015 (O&M) [ENTITY] and another Appellants(s) Versus [ENTITY] and others Respondent(s) CORAM:- HON'BLE MRS. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant in FAO-1507-2015 and for respondent no.3-insurance company in FAO-4236-2015. Mr. [ENTITY], Advocate for the appellant in FAO-4236-2015 and for respondents no.1 & 2 in FAO-1507-2015. [ENTITY], J.
This judgment shall dispose of FAO-1507-2015 (Reliance General Insurance Co. Ltd. Vs. Smt. [ENTITY] and others) as well as FAO-4236- 2015 ([ENTITY] and another Vs. [ENTITY] and others) as both the above noted 1 of 7 appeals arise out of award dated 29.11.2014, passed by the learned Motor Accident Claims Tribunal, Kaithal (hereinafter referred to as 'the Tribunal).
FAO-4236-2015 has been filed seeking enhancement of the compensation awarded to the appellant-claimant vide award dated 29.11.2014, passed by learned Motor Accident Claims Tribunal, Kaithal (hereinafter referred to as 'the Tribunal) on account of death of their two month old daughter in the motor vehicle accident, which took place on 30.07.2012. FAO-1507-2015 has been filed by the insurance company, seeking reduction of compensation.
In the motor vehicle accident, which took place on 30.07.2012, a number of persons died and many others suffered serious injuries. 37 claim petitions were filed seeking compensation on account of death of some of the persons and for the injuries suffered by others. Learned Tribunal consolidated all the 37 claim petitions and decided them vide a common award dated 29.11.2014. It is pleaded in all the claim petitions that the deceased/injured, about 60 persons, all together had gone to Amarpura Dham (Rajasthan) for pilgrimage in an Eicher Canter bearing registration No.HR-64-2433. At about 3:00 AM, on 30.07.2012 they started their journey for returning back to Kalayat (Kaithal) in the above said vehicle, which was being driven by [ENTITY] son of [ENTITY], on a very moderate speed while observing all traffic rules. When they reached in the area of Sainiwas Railway Crossing on Rajgarh, Hissar Road, the offending truck bearing registration No. HR-58-A-5377, being driven by respondent no.1, in 2 of 7 rash and negligent manner came from opposite side at a very fast speed, without blowing its horn. After coming on to the wrong side of the road, it struck against the Eicher Canter bearing registration No. HR-64-2433. As a result thereof, all occupants of the Eicher Canter received multiple, serious and grievous injuries. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and many other persons succumbed to their injuries at the spot, whereas some other passengers namely [ENTITY], [ENTITY], [ENTITY], [ENTITY] son of [ENTITY] etc. received multiple serious injuries on their persons. It is pleaded that the accident in question took place due to rash and negligent driving of respondent no.1, while driving the said offending truck. Case FIR No.142 dated 30.07.2012 under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] was registered against respondents no.1 and respondent no.1-A with regard to the said accident.
After considering the evidence on record, facts and circumstances, learned Tribunal concluded that the accident in question took place due to the rash and negligent driving of the offending truck bearing registration no. HR-58-A-5377 by its driver - respondent no.1 [ENTITY]. It is further concluded by the learned Tribunal that there is an admission on the part of the claimants that there were as many as 70 to 80 passengers travelling in the canter. Wooden rafters were fitted in this canter, thereby converting it into a veritable double decker vehicle. Passengers were sitting on the wooden rafters as well. Due to the impact, the wooden rafters collapsed. Consequently, the passengers who were sitting on the said rafters, fell on the 3 of 7 passengers sitting below. This in turn increased the number of casualties. Learned Tribunal held that the act of the passengers in sitting in this fashion amounts to contributory negligence, which was assessed to the extent of 10%. Compensation in varying amounts was awarded in the separate claim petitions as per the facts of each case.
Learned Tribunal awarded a sum of Rs.5,54,000/- as compensation to the claimants, on account of death of the child, which is detailed as under:-
Sr. No. Heads Calculations 1. Income 30,000 per annum 2. Dependency after applying 30,000 x 18 = 5,40,000/- multiplier of 18 3. Loss of love and affection 25,000/- to claimant no.1 4. Loss of love and affection 25,000/- to claimant no.2 5. Funeral expenses 25,000/- Total Rs.6,15,000 /- Grand total after 6,15,000 - 61,500 = deducting 10% on 5,53,500/- (rounded off account of contributory to Rs.5,54,000/-) negligence
Learned counsel for the appellants-claimants contends that the learned Tribunal has erred in assessing the notional income of the deceased to be Rs.30,000/- per annum. He relies upon decision dated 21.09.2017 in [CASE NUMBER] ([PRECEDENT] dated 21.09.2017, to submit that notional income of the deceased should at least be assessed as Rs.50,000/- per annum. Meagre amount has 4 of 7 been awarded under the conventional heads. It is thus prayed that the compensation be enhanced accordingly.
Learned counsel for the insurance company vehemently opposes any enhancement of the compensation awarded by the learned Tribunal while submitting that multiplier of 18 has been wrongly applied by the learned Tribunal and that income of a two month old child has been wrongly assessed as Rs.30,000/- per annum. It is thus prayed that the compensation awarded be reduced accordingly.
I have heard learned counsel for the parties and have gone through the files.
There is no dispute regarding death of daughter of the claimants, in the motor vehicle accident, which took place on 30.07.2012, due to the rash and negligent driving of the offending truck bearing registration No. HR-58-A-5377, by its driver. In [CASE NUMBER] ([PRECEDENT] decided on 21.09.2017, a coordinate Bench while dealing with a similar matter, assessed notional income of a deceased student as Rs.50,000/- per annum in respect to an accident which took place in the year 2011. Specific reference was made therein to the judgment of the Hon'ble Supreme Court in the case of [PRECEDENT], wherein notional income of a ten year old child was assessed to be Rs.30,000/- per annum. Accident in the said case had occurred in the year 1992. Reference was also made to the decision of the Hon'ble Supreme 5 of 7 Court in [PRECEDENT] especially with regard to the Second Schedule to [SECTION] of the Act for calculating compensation in case of a victim below 15 years of age.
Keeping in view the factual matrix of the present case, it is considered just and appropriate to assess the notional income of the deceased to be Rs.50,000/- per annum instead of Rs.30,000/- per annum as assessed by the learned Tribunal. Multiplier of 15 instead of 18 has to be applied in this case in view of the guidelines laid down by the Hon'ble Supreme Court in [PRECEDENT]. Instead of a sum of Rs.25,000/- awarded by the learned Tribunal towards funeral expenses, appellants are entitled to Rs.15,000/- towards funeral expenses besides a sum of Rs.15,000/- towards loss of estate. Claimants are not entitled to sum of Rs.25,000/- each on account of loss of love and affection, however, in terms of the judgment of the Hon'ble Supreme Court in [PRECEDENT]., in [CASE NUMBER] decided on 18.09.2018, the claimants are entitled to a consolidated sum of Rs.40,000/- on account of loss of filial consortium.
Learned Tribunal has correctly deducted 10% of the awarded amount on account of contributory negligence.
Appellants-claimants are, thus, entitled to compensation which is re-worked as under:-
6 of 7 Sr.No. Heads of Claim Amount 1. Income 50,000/- per annum
2. Total dependency after 50,000 x 15 = 7,50,000/-
applying multiplier of 15
3. Funeral expenses 15,000/-
4. Loss of estate 15,000/-
5. Loss of filial consortium to 40,000/-
claimants
6. Total Rs.8,20,000/-
7. Grand total after deducting 8,20,000 - 82,000 = 10% on account of Rs.7,38,000/-
contributory negligence
8. Compensation payable to Rs. 7,38,000/-
the claimants Needless to say, the amount already awarded by the learned Tribunal shall stand deducted from the compensation as detailed above. Appellants shall be entitled to interest on the enhanced amount at the rate of 7.5% per annum from the date of filing of the petition till realization.
In view of the discussion as above and modification in the compensation awarded, both the appeals are disposed of accordingly.
( [ENTITY] ) December 09, 2019. JUDGE [ENTITY] Whether speaking/reasoned: Yes/No Whether reportable: Yes/No 7 of 7