IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 13 of 2005. Judgment reserved on :3.5.2010. Date of decision : June 14, 2010. Chamaru Ram & Others …Appellants. Versus Ashok Kumar and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellants : Mr. Ashok Sharma Advocate. For the Respondents : Mr. K.B.Khajuria, Advocate for respondent No.1. Mr. Sanjeev Sood, Advocate for respondent No.2. _____________________________________________________________ Kuldip Singh, Judge The claimants are in appeal against award dated 30.4.2004 passed by the learned Motor Accident Claims Tribunal, Chamba in MAC Petition No. 90 of 2001. The appellants No.1, 2 are the parents and appellant No.3 is the sister of deceased Jatinder who met with an accident on 16.4.2001. 2. The facts, in brief, are that the appellants had filed claim petition claiming Rs. 6,00,000/- compensation on account of death of Jatinder on 29.4.2001 as a result of accident dated 16.4.2001 which ___________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 took place at about 7.15 p.m. at village Ghatgalu, Tehsil and District Chamba due to rash and negligent driving of vehicle No. HP-48-2087 by its driver Madan Lal who was respondent No.2 in the claim petition but in the appeal his name has been deleted vide order dated 24.8.2005. The further case of the appellant is that deceased Jatinder was traveling in bus No. HP-48-2087 when it met with an accident. The deceased was 21 years at the time of accident. He was trained driver and used to assist his parents in agriculture and was earning Rs. 6000/- per month. The deceased was referred to PGI Chandigarh, where he succumbed to his injuries on 29.4.2001.It has been alleged that an amount of Rs. 18,000/- was spent on the treatment of the deceased and in traveling. The respondent No.1 is the owner of the bus and respondent No.2 is the insurer. 3. The petition was contested by respondent No.1, he denied the accident. He denied the claim of the appellants. Madan Lal driver also contested the petition and denied the claim of appellants. The respondent No.2 insurer filed separate reply and took the objection that deceased himself was driving the bus at the time of the accident and accident took place due to rash and negligent driving of the deceased. The petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘Act’) is not maintainable. The deceased was not holding valid and effective driving licence at the time of the accident. On merits, the claim was denied. In rejoinder the appellants reiterated their stand. 4. On the pleadings of the parties, the following issues were framed:- 3 1. Whether Jitender son of Shri Chamaru Ram had died due to the rash and negligent driving of respondent No.2 Madan Lal, as alleged? OPP 2. In case issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom ? OPP. 3. Whether the bus involved in the accident at the relevant time was being driven by deceased Jitender, as alleged? OPR-3. 4. In case issue No.3 is proved in affirmative, whether the deceased was driving the bus without a valid and effective driving licence, as alleged ? OPR-3. 5. Relief. The issue No. 1 was answered in affirmative , under issue No.2 an amount of Rs. 1,94,700/- was awarded against insurer. The issues No.3 and 4 were answered in negative and the petition was allowed on 30.4.2004 by awarding Rs. 1,94,700/- along with interest at the rate of 9% per annum from the date of filing of the petition i.e. 19.7.2001 till the amount of compensation is paid or deposited by insurer. The amount of compensation was ordered to be shared equally by appellants-claimants. 5. The appellants have come in appeal against the award dated 30.4.2004 for enhancement. On 29.5.2009 in the appeal the following question was referred to larger bench :- “In a claim petition of the parents under the Motor Vehicles Act what should be normal deduction on account of personal expenses of unmarried deceased from his income while assessing the dependency of his parents ?” On 11.11.2009 the Full Bench answered the reference : 4 “ Accordingly, in view of the overwhelming case law cited hereinabove, we answer the reference by holding that deduction of 1/3rd towards personal expenses is accepted norm while determining the dependency. The FAO be now placed before the learned Single Judge for hearing.” The appeal is now to be decided on merits. 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that the appellants have proved that the deceased was earning Rs. 3500/- per month salary. The deceased was 21 years, keeping in view the ages of the parents, deceased, 17 is the appropriate multiplier for assessing the compensation. It has been submitted that the learned Tribunal has erred in relying the statement of counsel for appellants that there is no positive evidence qua the income of the deceased on record and, therefore, his income is to be fixed notionally. The learned Tribunal has wrongly taken the income of deceased Rs. 15,000/- per annum notionally. It has been submitted that while considering the statement of the learned counsel for the appellants the evidence which has come on record regarding the income of the deceased cannot be ignored. The case is to be decided on the basis of preponderance of evidence. The learned counsel for the respondents while supporting the impugned award have submitted that just and equitable compensation has already been awarded to the appellants and the appellants are not entitled to enhancement of compensation more particularly in view of the statement dated 30.4.2004 of their counsel before the learned Tribunal. The learned Tribunal took the income of deceased Rs. 15,000/- per annum and 5 held that deceased must be spending Rs. 5,000/- per annum on himself and therefore, held the dependency of appellants Rs. 10,000/- per annum. The learned Tribunal applied the multiplier of 17 and assessed compensation Rs. 1,70,000/-. The Tribunal has also awarded Rs. 8000/- on account of transportation charges, Rs. 6700/- for medical treatment, Rs. 5000/- funeral expenses, Rs. 5000/- on account of loss of love and affection. Thus, in all Rs. 1,94,700/- (Rs. 1,70,000/- + Rs. 8000/- + Rs. 6700/- + Rs.5000/- + Rs.5000/-) compensation was awarded to appellants alongwith 9% per annum interest as noticed above. 7. The controversy in the appeal is confined to quantum only. The respondents have not filed any cross-objections in the appeal or separate appeal against the impugned award, in these circumstances, the impugned award has attained finality against the respondents. The question of negligence of driver for causing the accident has attained finality so also liability of respondent No.2 to pay the compensation to appellants on account of death of Jatinder. The statement of PW-3 Chamaru Ram father of the deceased was recorded on 6.6.2003 and on that date he has given his age 40 years. He has stated that age of his son at the time of accident was 21 years, he was driver on private vehicle and he was earning Rs. 3500/- per month on account of salary. He was working with Janak Raj, his employer used to bear the expenses of his meals. The deceased used to bear the expenses of the family. The deceased was treated at Chamba, Dharamshala and PGI Chandigarh where he died. He claimed Rs. 6,00,000/- on account of compensation. 6 8. In the cross-examination conducted by the learned counsel for the insurer, a suggestion has been given to PW-3 that when driver Madan Lal used to be on leave then his son used to drive the bus, but he denied this suggestion. PW-4 Vinod Kumar S/o Sh. Janak Raj has stated that he knew Jatinder S/o Chamaru Ram. He was working with him as driver on Rs. 3500/- per month. He died in the accident. In the cross-examination conducted by the insurer, it was suggested to PW-4 that on the date of the accident the deceased had taken leave from him on the plea that Madan driver would drive the vehicle. But this suggestion was denied by PW-4 Vinod Kumar. The owner examined RW-1 Yog Raj, Conductor of bus No.HP-48-2087 but he has stated nothing regarding the employment of deceased. The insurer has led no evidence. 9. On 30.4.2004 the learned counsel for the appellants before the learned Tribunal made a statement that there is no positive evidence qua the income of deceased on the record and, therefore, his income may be fixed notionally. PW-3 and PW-4 have specifically stated regarding the monthly income of the deceased. The cross- examination of these witnesses by the insurer also indicates that even the insurer has accepted that the deceased was working with PW-4 Vinod Kumar or his father Janak Raj. The defence of insurer in the reply is that deceased was driving the ill fated vehicle. In view of the statements of PW-3 and PW-4, the statement of the learned counsel for the appellants before the learned Tribunal that there is no positive evidence regarding the income of the deceased, has no legal value. 7 This statement is not better than an opinion. The case is to be decided on the basis of preponderance of evidence. 10. In Dalip Kumar Vs. Rajesh Sahani and others 2004 (Suppl.) Cur.L.J. (H.P.) 390, it has been held that merely clothing the Tribunals with the powers of Civil Court for the purpose of taking evidence on oath, for enforcing attendance of witnesses, for compelling the discovery and production of documents and material objects, or for such other purposes as may be prescribed does not suggest or stipulate that the Tribunal shall be bound in the same rigmarole as the Civil Courts are or that the procedure prescribed in Civil Procedure Code or any other law, shall be applicable to the enquiry being held by a Tribunal. Actually, sub section (1) of Section 169 of the Act has clearly laid down that the inquiry shall be of a summary nature. This being the position, the Tribunal cannot be equated with a Civil Court in the sense that the rigours of procedural law are applicable to a Tribunal. The Tribunal should not take a pedantic view of the matter like ordinary Civil Courts bound by the shackles of procedural law contained in statutes like the Code of Civil Procedure or the Evidence Act, and throttle such a claim. In presence of evidence on record regarding income of deceased the statement of learned counsel for the appellants before the Tribunal is meaningless. The statements of PW-3 and PW-4 are to be appreciated in accordance with law regarding the income of deceased. 11. PW-3 and PW-4 have stated that the deceased from his employment was earning Rs. 3500/- per month. The deceased was holding licence, there is no reason to disbelieve the statements of 8 PW-3 and PW-4 regarding the monthly income of the deceased. The statements of PW-3 and PW-4 on the income of deceased appear to be just and reasonable. In the year 2001, it is reasonable to infer that deceased was getting Rs. 3500/- per month salary as driver. It is thus held that deceased was earning Rs. 3500/- per month salary as driver. 12. The deceased was unmarried and was 21 years of age. PW-3 has stated that deceased used to run the expenses of the family. The Full Bench vide judgment dated 11.11.2009 has held that deduction of 1/3rd towards personal expenses is accepted norm while determining the dependency. In these circumstances, monthly dependency of the appellants comes to Rs. 2334/- or say Rs. 2335/- (Rs. 3500/- - Rs. 1166/-). The appellant No.1 has given his age 40 years when his statement was recorded. In H.S. Ahammed Hussain and another Vs. Irfan Ahammed and another (2002) 6 SCC 52, the age of victim Rafeeq was 21 years and his father’s age was 45 years whereas that of his mother was 40 years. The Supreme Court has allowed the multiplier of 16. In the present case, the deceased was 21 years, his father was about 40 years at the time of the accident. Therefore, in view of H.S. Ahammed Hussain (supra), 16 is the appropriate multiplier for determining the compensation in the present case. The learned counsel for the appellants has not assailed the medical expenses, transportation charges, funeral expenses, loss on account of love and affection awarded by learned Tribunal nor the learned counsel has argued for compensation under other heads 9 except for compensation on the basis of Rs.3500/- monthly salary of the deceased. 13. The annual dependency of the appellants comes to Rs. 2335/- x 12 = Rs. 28,020/- and after applying the multiplier of 16 the appellants are entitled to compensation Rs. 28020 x 16 = Rs. 4,48,320/- on account of death of Jatinder. The learned Tribunal has awarded Rs. 6700/- on account of medical expenses, Rs. 8000/- for transportation charges, Rs. 5000/- funeral expenses, Rs. 5000/- on account of loss of love and affection which amount has not been disputed by the learned counsel for the appellants. Thus, the appellants are entitled to total amount of Rs.4,48,320/- + Rs.6700/- + Rs. 8000/- + Rs.5000/- + Rs.5000/- = Rs. 4,73,020/-. On this amount, the appellants are also entitled to interest at the rate of 9% per annum from the date of filing of the petition till payment, deposit. The amount of compensation shall be apportioned among the claimants as follows:- i) Appellant No.1 Chamaru Ram = 30% ii) Appellant No.2 Khailo = 50% iii) Appellant No.3 Rekha = 20% The entire amount of compensation alongwith interest shall be paid by respondent No.2 insurer. 14. No other point was urged. 15. The result of the above discussion, the appeal is allowed, award dated 30.4.2004 passed by the learned Motor Accident Claims Tribunal, Chamba in MAC Petition No. 90 of 2001 is modified. The appellants are held entitled to Rs. 4,73,020/- compensation on account of death of Jatinder. The appellants are also entitled to 10 interest at the rate of 9% per annum on Rs. 4,73,020/- from the date of filing of the petition till payment, deposit. The amount of compensation as determined above includes the amount of interim award, if any, paid to appellants. The entire amount of compensation along with interest in the ratio indicated above, shall be paid to appellants by respondent No.2 insurer. No costs. June 14 , 2010. (Kuldip Singh) (GR) Judge.