F.A.O.No.2349 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.2349 of 2009 (O&M) Date of Decision 04.12.2009 Smt.Darshna Devi and others ...... Appellants VERSUS Mahender Singh and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Kulvir Narwal, Advocate, for the appellants. Mr.Vishal Chaudhary, Advocate, for Mr.Vinod Chaudhary, Advocate, for the respondent-Insurance Company. ***** A.N.JINDAL, J(ORAL): This appeal for enhancement is directed against the award dated 06.06.2008, passed by Motor Accident Claims Tribunal, Rohtak (herein referred as 'the Tribunal') awarding compensation to the tune of Rs.4,43,000/- alongwith interest @ 7.5% per annum in favour of the claimants-appellants (herein referred as 'the appellants') and against the respondents jointly and severally on account of the death of Yash Kumar in a motor vehicular accident. Actually, the compensation was to the tune of Rs.8,85,000/-, however, the Tribunal while observing that it was a case of contributory negligence awarded compensation to the appellants to the extent of ½. Neither the negligence nor the liability of respondents No.1 to pay compensation has been challenged. However, the appellants have challenged the findings of contributory negligence as well as they have sought enhancement of compensation. Heard. While keeping note of the fact that it was on account of sheer negligence of the deceased and not of the truck driver as the deceased struck his motorcycle with stationary truck; the deceased was a pillion rider of the motorcycle and the driver of the motorcycle struck the motorcycle in the truck. The truck was lying parked in the middle of the road without any parking lights and without any indicator and the accident took place at 5:00 a.m. on 07.03.2006. The definite opinion could be formed that it was not on F.A.O.No.2349 of 2009 (O&M) 2 account of sole negligence on the part of motorcycle driver but respondent No.1 was also at fault while parking the truck on the middle of the road without placing any parking lights as well as indicators. Thus, the argument advanced by learned counsel for the appellants is turned down and the Tribunal appears to have rightly observed that the accident took place on account of the contributory negligence on the part of motorcycle driver as well as respondent No.1. Now coming to the other question of quantum of compensation, the age of the deceased, as proved by the appellants was 44 years at the time of accident. The accident took place on 07.03.2006 and he remained admitted in PGIMS, Rohtak from 07.03.2006 till the date of his death i.e. 16.03.2006. Smt.Darshana (PW1) widow of the deceased, stepped into the witness box and stated that she had spend Rs.50,000/- on treatment and transportation etc. and she had to spent Rs.25,000/- on his last rites. It has also come in evidence that the deceased was Head Constable in Haryana Police and was drawing a salary of Rs.9424/- per month. It is also settled by now that it is not the carry home salary which is to be taken into consideration for assessing the compensation as the money which was being deducted by his department was again go to the family kitty, therefore, that was also loss to the estate of the deceased. As such, the gross income minus income tax is to be calculated for assessing compensation. In the present case, no tax was to be deducted as this case did not fall within the required slab. Learned counsel for the appellants has also argued that by seniority, the deceased could become the Station House Officer one day. In any case, taking into consideration the exigencies and uncertainties of the life and the other natural factors by which his life could be cut short, I deem it appropriate to determine his monthly income for the purpose of determining compensation, at the rate of Rs.10,000/- per month. As regards the argument with regard to further higher increase, the Court could take note of the fact that the claimant was to get family pension which could be adjusted against the anticipated increase in the salary. As such, while examining the case from all the angles, the monthly income of the deceased is determined as Rs.10,000/- per month. Since the dependents upon the deceased were more than 4, therefore, his self dependency should be determined to the extent of 1/4th. Thus, the F.A.O.No.2349 of 2009 (O&M) 3 dependency towards the appellants comes to Rs.7500/- per month. As regards the multiplier, the deceased was 44 years at the time of accident and as per Apex Court judgment delivered in case Smt.Sarla Verma and others appellants vs. Delhi Transport Corporation and another respondents 2009 (3) RCR (Civil) 77, in case persons die within the age group of 41 to 44, then multiplier of 14 should be applied. As such, while applying the multiplier of 14, the compensation comes to Rs.12,60,000/-. While adding Rs.10,000/- on account of consortium, Rs.10,000/- on account of transportation expenses and Rs.20,000/- on account of medical and funeral expenses, the total compensation payable to the appellants comes to Rs.13,00,000/- Thus, on account of contributory negligence of the motorcycle driver, the respondents would be liable to pay a sum of Rs.6,50,000/- of compensation i.e. ½ of the compensation amount. Resultantly, this appeal is partly accepted and the impugned award is modified by enhancing compensation to the tune of Rs.2,07,000/- over and above the amount in favour of the appellants and against the respondents jointly and severally. However, the appellants would also be entitled to receive the interest on the enhanced amount at the same rate as awarded by the Tribunal. The remaining terms of the award passed by the Tribunal shall remain intact. No order as to costs. (A.N.Jindal) Judge 04.12.2009 mamta-II