IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 2438 of 2003 Date of Decision : March 06, 2009 Smt. Maina Devi and others ....Apellants Versus Nasib Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. P.L. Singla, Advocate for the appellants. Mr. J.S. Cooner, Advocate for respondent No.1. Mr. S.K. Hooda, Senior Deputy Advocate General, Haryana for respondents No. 2 and 3. T.P.S. MANN, J. Petition filed by the claimants under Sections 166 and 140 of the Motor Vehicles Act, 1988 (for short 'the Act') for the grant of compensation to them on account of death of Sher Singh in a motor vehicular accident on 29.12.1997 was accepted by learned Motor Accidents Claims Tribunal, Panchkula on 4.11.2000 and they were granted an amount of Rs.3,67,000/- as compensation along with costs and interest at the rate of 12% per annum from the date of institution of the claim petition till its realization. All the three respondents were directed to pay the amount of compensation jointly and severally. Pleading that the amount of compensation awarded was highly adequate, the claimants F.A.O. No. 2438 of 2003 -2- filed the present appeal under Section 173 of the Act with a prayer for enhancing the compensation to Rs.8 lakh as claimed by them in their claim petition. The case of the claimants was that on 29.12.1997, deceased Sher Singh had gone to Panchkula for some work on his scooter No. HR- 04-3962. After completion of work, he was returning home to his village Baghwali. At about 1.00 P.M. when he was ahead of Gurdwara Nada Sahib by half a kilometre, a bus belonging to Haryana Roadways, Chandigarh Depot bearing No. HR-03-9237, while being driven by Nasib Singh, respondent No. 1, in a rash and negligent manner came from the side of Ramgarh and hit the scooter of the deceased. As a result, deceased Sher Singh fell down and the front wheel of the bus passed over the head of the deceased who breathed his last at the spot. The occurrence was witnessed by Kiran Singh. At the time of his death, Sher Singh was 42 years of age and earning Rs.8,000/- per month from 4 acres of agricultural land. In addition, he was also earning Rs.4,000/- per month by running a dairy and selling milk. Accordingly, the claimants, who were his widow and minor children, sought an amount of Rs. 8 lakh as compensation. Respondent No. 1 Nasib Singh, driver of the bus, opposed the claim petition on the plea that it was the deceased who was rash and negligent in driving the scooter leading to causing of accident. F.A.O. No. 2438 of 2003 -3- Respondents No. 2 and 3, owners of the bus, contested the petition pleading that when the bus reached near village Nada Sahib, a three wheeler was standing parked ahead of the bus. The driver of the bus turned the bus slightly away from the three wheeler but in the meantime, a gypsy coming from the opposite direction at a high speed applied the brakes suddenly. A scooterist was following the gypsy who could not control the balance and struck his scooter against the gypsy. As a result, the scooterist fell on the road and died due to the head injury. It was denied that the bus was being driven in a rash and negligent manner or the scooterist hit the bus or the bus passed over his head. After going through the pleadings of the parties, learned Tribunal framed the following issues :- 1. Whether the accident in question had taken place on account of rash and negligent driving of bus No. HR-03-9237 by its driver respondent No. 1.? OPP. 2. To what amount of compensation the claimants are entitled to and from whom? OPP. 3. Relief. F.A.O. No. 2438 of 2003 -4- On the basis of the evidence led by the parties and after hearing learned counsel for the parties, learned Tribunal held that the accident had taken place due to rash and negligent driving of the bus by Nasib Singh respondent. The income of the deceased was assessed at Rs.3,000/- per month and after deducting a sum of Rs.1,000/- which the deceased was spending on himself, the monthly contribution to the family was determined at Rs. 2,000/-. As the deceased was 42 years of age, multiplier of 15 was applied and, accordingly, compensation assessed at Rs.3,60,000/- besides a sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of consortium granted. Learned counsel for the appellants submitted that the deceased was a cultivator by profession who owned four acres of land. Besides, he was running a dairy, where he had kept 7/8 buffaloes. He used to sell 30 to 35 litres of milk everyday at the rate of Rs. 10/- per litre. After his death, his widow had to sell the buffaloes, besides employing an attendant at the rate of Rs.2,000/- per month for looking after the agricultural land. According to the claimants, the deceased had been giving an amount of Rs.8,000/- per month to them for running the household expenses. Under these circumstances, the dependency was required to be pegged at Rs.8,000/- per month and not at Rs.2,000/- per month as done by the learned Tribunal. Learned counsel for the respondents opposed the prayer F.A.O. No. 2438 of 2003 -5- made on behalf of the appellants by submitting that there was no documentary evidence to prove that the deceased was running a dairy. There was also no evidence to establish his agricultural income. Under these circumstances, no interference was called for in the findings arrived at by the learned Tribunal in granting the amount of compensation. Though there is no documentary evidence produced by the claimants/appellants about the income which the deceased was earning from his agricultural land or by running the dairy, yet, there is oral testimony of Smt. Maina Devi, widow of Sher Singh, who while appearing as PW2 stated that her husband was an agriculturalist, who owned four acres of land and had been getting good crops during his life time. After his death she had to employ an attendant at a salary of Rs.2,000/- per month. Her husband was also running a dairy with 7/8 buffaloes and selling 30 to 35 litres of milk. After the death of her husband, she had sold the buffaloes. Sat Pal PW3, deposed before the learned Tribunal that he used to purchase 30 to 35 litres of milk at the rate of Rs.10/- per litre everyday from the deceased. However, he did not produce any documentary evidence about the payments made to the deceased. At the same time, there is another factor which could be taken into consideration to find out as to what possibly could be the income of the deceased every month. It has come in the evidence that on the day of the accident, the deceased had left his village on his scooter for doing some work at Panchkula. The ownership of a scooter by the deceased F.A.O. No. 2438 of 2003 -6- showed his financial status In any case, the deceased must be earning an amount of Rs.4,000/- per month before he died in the accident in question. Learned Tribunal was not justified in holding that the income of the deceased was only Rs.3,000/- per month. Once it is held that the deceased was earning Rs.4,000/- per month, 1/3rd can be deducted out of the same towards his own expenses and, therefore, the monthly dependency/contribution to the family was Rs.2,666/- rounded of to Rs.2,650/-. The annual dependency was, accordingly, Rs.31,800/- and applying the multiplier of 15 as done by the learned Tribunal earlier, the claimants deserve an amount of Rs.4,77,000/- as compensation on account of death of Sher Singh in the motor vehicular accident, which was caused on account of rash and negligent driving of the bus by respondent No.1, which bus was owned by respondents No. 2 and 3. Apart from the said amount, as held by the learned Tribunal, the claimants were also entitled to a sum of Rs.2,000/- towards funeral expenses, whereas Smt. Maina Devi-claimant, being the wife of the deceased also entitled to a further sum of Rs.5,000/- for the loss of consortium. In all, the total amount of compensation comes to Rs.4,84,000/-. Resultantly, the amount of compensation awarded by the learned Tribunal is enhanced from Rs.3,67,000/- to Rs.4,84,000/-, which shall be paid jointly and severally by all the respondents along with F.A.O. No. 2438 of 2003 -7- interest @ 9% per annum on the enhanced amount from the date of institution of the claim petition till the realization of the enhanced amount. Out of Rs.1,17,000/- which is the enhanced amount of compensation, Rs.67,000/- shall be paid to Smt. Maina Devi-claimant while the remaining amount of Rs.50,000/- shall be paid in equal shares to Anju Devi and Mukesh Kumar in case they have since attained the age of majority. In case, anyone of them is still a minor, his/her share shall be deposited in a fixed account in some interest bearing scheme in a nationalised bank of the choice of his/her guardian in his/her name till the child in question attains majority. Such a minor shall be entitled to get the amount released on attaining the majority. However, interest on the amount so deposited in the fixed account shall be released in favour of the concerned minor every quarterly. The appeal is disposed of in the above terms. No costs. ( T.P.S. MANN ) March 06, 2009 JUDGE satish