F.A.O. No. 5173 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 5173 of 2010 Date of Decision: November 2nd, 2011 Smt. Sarla Devi and others .... Appellants Versus Bharat Lal and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Sandeep Kumar Yadav, Advocate, for the appellant. Mr. Sudhir Aggarwal, Advocate, for respondent Nos. 1 and 2. Ms. Vandana Malhotra, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by Smt. Sarla Devi and others, the claimants for enhancement of compensation awarded to them in a sum of Rs.4,28,000/- by the Motor Accidents Claims Tribunal, Narnaul (for short, "the Tribunal") vide award dated 12.9.2009. The appellants brought the claim petition under section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") seeking compensation in a sum of Rs. 20,00,000/- on account of death of Sher Singh in a road side accident that took place on 9.8.2008. The claim of the F.A.O. No. 5173 of 2010 2 .. appellants is as under: Sher Singh, aged about 28 years, was working as a driver and was earning Rs. 8000/- per month. On 9.8.2008, he was on his way to Ateli Mandi from his village on a motorcycle bearing registration No.RJ-02-9M-9977. The motor cycle was driven on his correct left side of the road and it was moving at a moderate speed. When the motorcycle was near Indane Gas Agency, in the area of Ateli Mandi, the motorcycle was stopped on the kacha berm of the road on his left side by the deceased. According to the claimants, a dumper bearing registration no. HR-55G-8850 driven by respondent No.1, Bharat Lal, came in a rash and negligent manner and had struck the motorcycle at its back by coming to the wrong side of the road. Sher Singh fell down as a result of the accident and suffered multiple injuries. He was declared as 'brought dead' when taken to C.H.C. Ateli Mandi. A case was got registered against respondent No.1 at Police Station Ateli for this accident. The claim petition is resisted by the respondents. Respondents No.1 and 2, the driver and owner respectively of the offending vehicle have denied any such accident to have taken place on the alleged date. It was, however, admitted that the vehicle was owned by respondent No.2. It was, however, claimed that in case the involvement of the vehicle was proved, the responsibility to pay the compensation should be fastened on respondent No.3, with whom the vehicle was insured at that time. F.A.O. No. 5173 of 2010 3 .. ICICI Lombard General Insurance Company Limited, respondent no.3, filed its written statement and has adopted the plea of respondents No. 1 and 2 of denial of accident and the falsity of the FIR lodged in this regard. The averments of the claimants regarding age and income of the deceased were denied. The driver of the offending vehicle was denied to be holding a valid and effective driving licence at the time of alleged accident. The liability to pay compensation has been disputed. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether Sher Singh son of Ram Avtar died in a road accident which took place on 9.8.2008 in the area of Ateli Mandi, on Rewari-Narnaul Road (Police Station Ateli Mandi) due to rash and negligent driving on the part of respondent no.1, the driver of truck/dumper No.HR-55G-8850? OPP 2. Whether the driver of the vehicle in question did not hold a valid driving licence, if so to what effect? OPR-3 3. Whether the petitiones are entitled to award of compensation and if so, how much and from whom? OPP 4. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of 4,28,000/- to the claimants vide the F.A.O. No. 5173 of 2010 4 .. impugned award, payable to them jointly and severally by the respondents with interest at the rate of 6% per annum from the date of filing of the claim petition till its realization. Dissatisfied with the amount awarded by the Tribunal, the claimants have brought this appeal. I have heard Mr. Sandeep Kumar Yadav, learned counsel for the appellant, Mr. Sudhir Aggarwal, learned counsel for respondent Nos.1 and 2 and Ms.Vandana Malhotra, learned counsel for respondent No.3. I have gone through the record carefully. The sole attack of learned counsel for the appellants on the award of the Tribunal is on the finding regarding income of the deceased. According to him, the deceased had been a driver and his driving licence was produced on the record of the Tribunal as mark P1. According to him, a person, who was holding a driving licence cannot be held to be an unskilled labourer, whose income even could not be taken as Rs.3,000/- per month. He has submitted that the income of the deceased should be taken anywhere above Rs.4,000/- and the compensation may be assessed accordingly. Learned counsel for respondent No. 3 on the other hand has submitted that mere presence of driving licence would not prove that the deceased was working as driver. According to her, the income of the deceased taken at Rs.3,000/- by learned Tribunal F.A.O. No. 5173 of 2010 5 .. is proper. According to her, the multiplier of 18 adopted by learned Tribunal is not as per the decision of Hon`ble Supreme Court of India in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77. According to her, the age of the deceased is 28 years and in such a case, Hon`ble Apex Court has laid down the multiplier of 17 to be applied for assessing the compensation. Learned counsel for the appellant has submitted that in the absence of an appeal by the insurer, multiplier could not be slashed down by this Court. This submission of learned counsel for the appellants does not hold good in view of the provisions of Order 41 Rule 33 CPC whereunder, the respondent can agitate a point inspite of the fact that no appeal had been filed by it. The age of the deceased is claimed by the claimants as 28 years and at this age, the multiplier suitable as per Smt. Sarla Verma's case (supra) is 17. Now comes the question about the income of the deceased. The earning capacity of a person is assessed on the strength of his capability. If the person is not skilled at any thing, he will be treated as unskilled labourer. However, when the person, like the deceased, was holding a driving licence, he was capable of driving a vehicle and earning accordingly. Income of a skilled labourer would atleast have to be taken as income of the deceased F.A.O. No. 5173 of 2010 6 .. in this case. Taking a sum of Rs. 4,000/- per month as his income and applying the cut of 1/3rd, which has been rightly adopted in this case by the Tribunal, I find Rs.32,000/- to be the annual dependency of the claimants and multiplying the same with 17, I find the claimants to have lost Rs. 5,44,000/- in the death of Sher Singh. Adding to it a sum of Rs.10,000/- for the loss of consortium, Rs. 5,000/- each for loss of estate and funeral expenses, I hold that the claimants are entitled to Rs.5,64,000/- as compensation on the death of Sher Singh. Consequently, the appeal is allowed enhancing the compensation from Rs. 4,28,000/- to Rs.5,64,000/-, out of which Smt. Sarla Devi would get 50% and the remaining 50% shall be shared by the other two appellants. The amount shall carry interest as allowed by the Tribunal. (VIJENDER SINGH MALIK) JUDGE November 2nd, 2011 som