IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 443 of 2009 Judgment reserved on: 17.5.2011. Date of Decision: 03.06.2011 Oriental Insurance Company …Appellant. Versus Smt.Anju Devi and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellants: Mr.Ashwani Sharma, Advocate. For the respondents: Mr.Nimish Gupta, counsel for respondents 1 to 5. Mr.C.S. Thakur, counsel for respondents 6&7. Deepak Gupta, J. 1. This Appeal by the Insurance Company is directed against the award of the learned Motor Accident Claims Tribunal (1), Kangra at Dharamshala whereby he allowed the claim petition, awarded compensation of Rs.5,42,864/- in favour of the claimants alongwith interest and costs and held the Insurance Company liable to pay the amount. 2. Briefly stated, the facts of the case are that the claimants, who are the widow and minor children of deceased Sarwan Kumar, filed a claim petition under Section 166 of the Motor Vehicles Act praying for grant of compensation. It was alleged that on 2 14.10.2006 the deceased was coming to his house after closing his vegetable shop when he was hit by tractor bearing No.HP- 53-1583 owned by Milap Chand, driven by Kuljit Singh Rana and insured with the appellant Insurance Company. As a result of the injuries suffered in the accident Sarwan Kumar died when he was being taken to PGI, Chandigarh for treatment. It was alleged that the deceased was 35 years old at the time of the accident and was earning more than Rs.12,000/- per month. Replies were filed by the respondents. The owner and driver did not dispute the accident. The Insurance Company obtained permission under Section 170 of the Motor Vehicles Act to contest the claim petition on all grounds and one of the grounds raised was that the deceased Sarwan Kumar was in fact travelling in the tractor as a gratuitous passenger and hence the Insurance Company was not liable. The learned Tribunal passed an award as aforesaid. Hence, the present appeal by the Insurance Company. 3. The Insurance Company has basically raised two grounds. It is urged by Sh.Ashwani Sharma that the deceased was in fact travelling in the tractor and was not a third party. According to him, he was not a by-standard but a gratuitous passenger and for this purpose reliance is placed on FIR Ext.PW-1/A. This FIR has been recorded on the information of Smt.Anju Devi wife of the deceased. The accident took place on 14.10.2006 at 3 about 6 p.m. and the FIR was lodged on 16.10.2006 at about 10.30 a.m. In this FIR it is stated that the deceased was travelling in the tractor and when the driver could not control the same it fell down. In the claim petition filed before the learned Tribunal the claimants stated that Sarwan Kumar was walking on the road near his house when he was hit by the tractor. The owner and driver did not state that the deceased was travelling in the tractor. However, the Insurance Company did raise a plea that the deceased was travelling in the vehicle as a gratuitous passenger. 4. The FIR Ext.PW-1/A was proved by PW-1 Judhi Singh. PW-3 Dr.D.D. Rana who conducted the post-mortem of the deceased in his examination-in-chief stated that the injuries mentioned in the post mortem report are possible in a motor vehicle accident. In cross examination he accepted that such injuries could also be possible in case a person falls down from a running tractor. 5. PW-4 Anju Devi is the wife of the deceased. According to her, her husband was walking on the road when the accident took place. In cross examination she stated that she was not present on the spot. When cross examined by the Insurance Company she admitted that her statement was recorded by the police and she had got the FIR lodged. However, according to her she was not at the spot and had not seen anything and she has just signed the FIR. She denied the suggestion that she had made a 4 statement to the police that her husband was travelling in the tractor. She explained that on that date her husband’s last rites were being performed. 6. PW-5 Rakesh Sharma is an eye witness and according to him the accident took place in his presence and the deceased was hit by the tractor when he was walking on the road. He has been cross examined at length by the Insurance Company. He admitted that he is not a summoned witness and has come at the asking of Anju Devi. He however denied the suggestion that the deceased was travelling in the tractor when the accident occurred. 7. RW-1 is the owner of the vehicle who was not present when the accident took place. RW-2 Kuljeet Singh is the driver of the tractor. He states that he was driving the tractor and that the deceased due to his own negligence hit the tractor. He has been cross-examined by the Insurance Company. He denied the suggestion that stones belonging to the deceased Sarwan Kumar were being carried in the tractor and Sarwan Kumar was also travelling in the tractor. 8. The most important evidence is of RW-3 Mehar Deen. According to this witness, on investigation he found that the deceased Sarwan Kumar was travelling in the tractor and thereafter a case was registered against the driver of the tractor. He admitted that the FIR was not written by him but he was 5 present at that time. He admits that Smt.Anju Devi widow of the deceased was weeping and crying but could not say what was her mental disposition. He also admitted that she was under shock due to the death of her husband. A suggestion was put to him that taking advantage of this a wrong FIR was registered. He also admitted that cremation was performed on 16.10.2006. According to him the FIR was recorded in the Police Station but surprisingly he states that Anju Devi did not visit the Police Station. He also admitted that during the investigation he did not visit the spot and all proceedings were carried out in the Police Station. 9. RW-4 Puni Chand again proved the FIR but he has not written the FIR. 10. From the above evidence it is apparent that the only document relied upon by the Insurance Company is the FIR. In my view, no reliance can be placed on the same. Admittedly Anju Devi was not present at the spot when the accident occurred. Therefore, she could not know whether her husband was travelling in the tractor or not. There is no explanation as to why the FIR was lodged after two days. No reliance can be placed on this FIR since it was recorded on the statement of a person not present on the spot and it is not understood why FIR was recorded on the statement of the widow who obviously 6 must have been undergoing a great trauma and was busy in performing the last rites of her husband. 11. As far as the quantum of compensation is concerned, it stands proved on record that the deceased was getting a salary of Rs.3670/- per month. The dependency has been worked out to Rs.2416/- per month and applying a multiplier of 17 loss of dependency worked out to Rs.4,92,864/-. Another sum of Rs.15,000/- has been awarded for loss of consortium, Rs.25,000/- for love and affection and Rs.10,000/- for funeral and conveyance expenses. Though the method of computing the total compensation may not be strictly in accordance with law laid down by the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, wherein the multiplier to be used in such a case would be 16 and not 17 but the learned Tribunal has not taken into consideration the future chances of increase of pay of the deceased and if these were taken into consideration the award in fact may have been slightly higher. Therefore, the award cannot be said to be excessive. 12. In view of the above discussion, I find no merit in the appeal which is accordingly dismissed. No costs. 13. On perusal of the award, I find that the learned Tribunal has apportioned the award in equal shares. In my view this apportionment is not correct. The widow is entitled to a larger 7 share in the compensation. It is, therefore, directed that out of the total compensation of Rs. 5,42,864/-, an amount of Rs. 75,000/- each shall be paid to the minor children and the balance amount of Rs. 2,42,864/- to the widow. Proportionate interest shall be paid to all of them. Out of the amount falling to the share of the mother a sum of Rs. 50,000/- shall be released in her favour by remitting the same to her bank account. The remaining amount alongwith interest shall be kept in a fix deposit. As far as the amounts falling to the share of the minor are concerned, the same shall be kept in fix deposits for a period till they attain majority. As far as the widow is concerned, the amount shall be kept in fix deposit for a period of 5 years at the first instance. It is, however, made clear that the interest accruing on the shares of the minors as well as the widow shall be paid to her on quarterly basis by remitting the same to her bank account and she shall use this amount for her maintenance and for the well being and upkeep of the minors. June 3, 2011 ( Deepak Gupta ) PV Judge.