F.A.O.No. 189 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1) F.A.O.No. 189 of 1990 Mal Singh and others ....Appellants Versus Kamlesh Kumari alias Kamlesh Rani and another ...Respondents 2) F.A.O.No. 217 of 1990 Kamlesh Kumari and another ....Appellant Versus Kesar Singh and others ...Respondents Date of Decision : 12.9.2008 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Satinder Khanna, Advocate for Kamlesh Kumari and Meenakshi (appellants in F.A.O.No.217 of 1990 & respondents in F.A.O. No.189 of 1990). Mr.P.S.Kang, Advocate for Mal Singh etc.( appellants in FAO No.189 of 1990 & respondents in F.A.O.No.217 of 1990). MAHESH GROVER.J.(Oral) This order will dispose of the aforesaid two appeals. F.A.O.No.189 of 1990 has been preferred by the owners of the offending vehicle upon whom the liability to satisfy the award has F.A.O.No. 189 of 1990 -2- been fastened. The only question that has been raised by the appellants in F.A.O.No.189 of 1990 is that the compensation awarded by the Tribunal is excessive and that one of the claimants, namely Meenakshi, who was the daughter of the brother of the deceased could not have been granted any compensation in view of the provisions of Section 1-A of the Fatal Accidents Act. F.A.O.No.217 of 1990 is directed against the award of the Tribunal by the claimants who have prayed for grant of enhanced compensation on account of the death of Ashok Kumar in the vehicular accident on 17.7.1988. The facts of the case in so far as the relation of the claimants with the deceased Ashok Kumar is concerned is somewhat peculiar and have to be noticed for the purpose of answering the controversy that has been raised by the learned counsel for the appellants in FAO No.189 of 1990. Kamlesh Kumari was initially married to one Ramesh Kumar, who was the brother of deceased Ashok Kumar. After the death of Ramesh Kumar she became the wife of Ashok Kumar by performing Karewa ceremony. Ramesh Kumar, who had pre-deceased Ashok Kumar left behind Meenakshi, his daughter, who was purportedly said to have been adopted by Kamlesh Kumari and Ashok Kumar. After the death of Ashok Kumar a claim petition was preferred by Kamlesh Kumari and Meenakshi by claiming that they were his widow and daughter respectively. The Tribunal accepted the prayer made by the claimants F.A.O.No. 189 of 1990 -3- and granted a total compensation of Rs.2,48,000/- along with interest @ 12% per annum from the date of filing of the petition till the date of its realisation. Out of this Rs.1,48,000/- were apportioned in the name of Kamlesh Kumari, while a sum of Rs.1,00,000/- was apportioned in the name of Meenakshi. Learned counsel for the appellants in FAO No.189 of 1990 has contended that the Tribunal has gone wrong in assessing the income of the deceased. It was contended that it is on record that the income-tax return furnished by the firm, of which the deceased was a partner, for the period 1986-87 showed the income as Rs.11,300/- per annum and the subsequent return for the year 1987- 88, which is after the death of the deceased, showed it to the tune of Rs.18,500/- per annum. The contention of the learned counsel for the appellants is that the return immediately preceding the death of the deceased could have been taken into consideration and not the return for the subsequent period. That apart, a challenge was also made to the multiplier which has been adopted by the Tribunal to contend that the multiplier according to the schedule of the Motor Vehicles Act at best should have been 17 instead of 20. The next ground for challenge was that Meenakshi was not entitled to any compensation being the brother's daughter even though the learned counsel for the appellants crazingly admitted that there was sufficient evidence to show that Kamlesh Kumar was the wife of Ashok Kumar. On the other hand, the claimants, who are also the appellants in FAO No.217 of 1990 contended that the compensation awarded is inadequate. It was contended that the subsequent income- F.A.O.No. 189 of 1990 -4- tax return furnished by the firm of the deceased reflecting an income of Rs.18,500/- which could not be said to be exorbitant considering the fact that the return of the preceding year showed the income as Rs.11,300/-. It was next contended that the multiplier of 17 should have been applied, as contended by the learned counsel for the appellants in FAO No.189 of 1990, cannot be accepted as the principles governing the provisions of Section 163-A of the Motor Vehicles Act are totally different from the principles that applied to the proceedings under Section 166 corresponding to Section 110A of the Motor Vehicles Act, 1939. It was next contended that in fact the income has been taken on the lower side and should have been more and that the Tribunal awarded nothing for funeral expenses and loss of estate, etc. In so far as the grant of compensation to Meenakshi, the alleged adopted daughter of the deceased is concerned, it was contended that in the absence of the father of the girl, who had pre- deceased Ashok Kumar, his brother, and in view of the fact that the subsequent marriage was transacted between the deceased and claimant Kamlesh Kumari, it was but natural and logical that Meenakshi would occupy the status of daughter of the deceased and merely because she was from the loins of Ramesh Kumar, her natural father, she could not be deprived of the compensation. It was further contended that even if the arguments of the learned counsel for the appellants in FAO No.189 of 1990 are accepted, then at best his grievance can be regarding the apportionment. But once the income of the firm has been taken into consideration to arrive at a figure of F.A.O.No. 189 of 1990 -5- Rs.2,48,000/-, then in that eventuality the entire compensation could have been granted to Kamlesh Kumari to the exclusion of Meenakishi. But there is no such grievance as expressed by the counsel representing the owner of the truck. I have heard the learned counsel for the parties and have perused the record. There is no denying the fact that the deceased was having a publication firm which was a family concern consisting of the deceased, his mother and appellant Kamlesh Kumari. If the income of the firm for the year 1987-88 is taken and broken down to compute it monthwise, the income of the firm comes to barely Rs.1,500/- approximately. In the year 1987 when the accident took place even a labourer would have been earning Rs.800/- to Rs.900/- per month. Therefore, the income even for the subsequent year cannot be said to be so exorbitant considering the fact that the deceased was running a publication firm. It is also a settled proposition of law that while assessing the compensation, the courts have to travel in the realm of conjectures and also to examine the evidence in the prospective to rule out the possibility of an exaggerated income which can form the basis of compensation. Relying on this basis and the observation that in the year 1987 even a labourer would have been earning Rs.800/- to 900/- per month, a person who is running a publication firm could be expected to earn at least this amount. Therefore, it cannot be said that the income assessed was exaggerated or inflated and the Tribunal has relied upon this income. In so far as the question of multiplier is concerned, the F.A.O.No. 189 of 1990 -6- second schedule to the Act is merely a guiding factor. The Tribunal at that point of time had applied the multiplier of 20. The multiplier as per the said schedule should have been 17. The compensation therefore has to be reduced proportionately. However, a perusal of the award shows that nothing has been awarded on account of funeral expenses as also for the loss of estate, etc. This Court is of the considered opinion that instead of scaling down the compensation and reducing it by the amount aforesaid on account of lesser multiplier, an amount of Rs.47,000/- should be paid on account of funeral expenses and loss of estate, etc. As far as the question of Meenakshi being entitled to compensation is concerned, there can be no quarrel regarding the same. But the fact remains that in the peculiar set of circumstances she cannot be said to be a non-dependent of the deceased. Having lost her natural father and her mother having married to Ashok Kumar she obviously became a part of the family and even if there is no legal adoption, she continued to the enjoy the status of a daughter depending solely on Ashok Kumar and her mother Kamlesh Kumari. In the given set of circumstances the strict interpretation as propounded by the learned counsel for the appellants/owners would be totally against the interest of the justice. Accordingly the same is rejected. Both the appeals are, therefore, disposed of accordingly. 12.9.2008 (MAHESH GROVER) JUDGE dss