FAO No. 253 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 253 of 1996 Date of decision .2.2010. Manjit Kaur and others ...... Appellants. versus Jasbir Singh and others ...... Respondents. Present : Mr. Jagdish Manchanda, Advocate for the appellants. Mr. Ashwani Talwar, Advocate for Insurance Company. K.C.PURI. J. This is an appeal preferred by the appellants for enhancement of the compensation amount awarded by the Motor Accidents Claims Tribunal, Kurukshetra vide Award dated 24.7.1995. Brief facts of the case are; that one private bus registered in Delhi and one Tempo suffered head on collision at some distance from Pipli towards Ambala resulting into death of the driver of the bus and death of driver and conductor of the tempo. The widow and children of these persons have filed three claim petitions. As per case set up by the side of Manjeet Kaur widow of driver of bus namely, Onkar Singh, on 16.3.1993 at about FAO No. 253 of 1996 2 5.30 A.M. deceased was driving bus bearing registration No. DL-1P-0669 which belongs to Delhi and was coming from Ambala side. When it reached one furlong away to village Dhantori towards Pipli side, a DCM Tyota bearing registration No. HR-01-9198 came from the opposite direction. That Tyota was driven negligently, rashly and carelessly and came on the wrong side and struck against the bus straightway. The driver of the bus namely, Onkar Singh died at the spot and some other passengers who were sitting in the bus also sustained minor injuries. Now, as per case set up by Palo Devi claimant widow of driver of the Tempo, while the vehicles were going in the direction already narrated above, the vehicle driven by her husband was in normal way and normal speed as well as on correct side of the road. In the meantime, the offending bus came from Shahbad side and hit the tempo and dragged the vehicle towards wrong side of the road resulting into death of her husband. According to her the accident occurred due to the negligence of bus driver. That since there was no survivor of DCM Tyota the conductor of the offending bus made up his own version before the police and attributed falsely the negligence to her husband. That the police had not examined any other person including the owner of Dhabas situated nearby who have witnesses the occurrence. Both the vehicles were insured and the Insurance Company i.e. National Insurance Company is liable with regard to bus and New India Assurance Company is liable with regard to the owner of four wheeler. In the respective written statements the respondents have taken the above stand. On these pleadings of the parties the following issues were FAO No. 253 of 1996 3 framed vide order dated 11.11.1994 :- 1. Whether the accident in question resulting into death of Gian Chand in claim petition No. 108/93, of Onkar Singh in claim petition No. 113/93 and of Malkiat Singh in claim petition No. 173/93 was caused due to rash and negligent driving of DCM Tyota No. HR 01-A/9198 by its driver Malkiat Singh (since deceased) or of bus No. DL-1P-0669 by its driver Onkar Singh (since deceased) or due to the contributory negligence of both the drivers? OPP 2. If issue no. 1 is proved, whether the claimants are entitled to compensation. If so, to what amount and from whom? OPP 3. Whether the vehicles in question were not being driven by the persons holding valid/ effective driving licences at the time of accident? OPR 4. Whether the vehicles in question were not being driven in accordance with the terms and conditions of policy of insurance issued ? OPR 5. Relief. The parties have led their respective evidence. The learned Claims Tribunal, after appreciating the evidence of the parties led by them, allowed claimant-Manjit Kaur Rs.1,89,000/- i.e. claimant Manjit Kaur was held entitled to receive Rs.1,00,000/- and the remaining amount of Rs.89,000/- was held to be paid to both the minor children in equal shares i.e. Rs.44,500/- each to be paid by the New India Assurance Company. FAO No. 253 of 1996 4 Further, the claimants were also held entitled to interest at the rate of 12% per annum from the date of filing of their claim petition till the realization. Feeling dis-satisfied, the claimants-appellants have preferred this appeal. Learned counsel for the appellants has submitted that accident has taken place due to rash and negligent driving of the DCM Toyota bearing registration No.HR-0A-9198. Onkar Singh deceased was driving the bus No. DL-IP-0669 at a slow speed. The FIR has been registered against the driver of DCM Toyota No. HR-01-9198. The claimants also produced evidence to support the contention that accident has taken place due to rash and negligent driving by the driver of DCM Toyota and not on account of driver of Bus Onkar Singh deceased. The learned Tribunal has wrongly assessed that the driver of bus Onkar Singh deceased is negligent to the extent of 30%. The whole of the liability should have been imposed on the driver, owner and Insurance company of DCM Toyota bearing registration No.HR-01-9198. I have carefully considered the said submission and have gone through the records of the case. The learned Tribunal has discussed the evidentiary value of each and every witness produced by the claimants and have also given due weightage to their testimonies. On re-appreciation of the evidence, no ground for interference is made out in the finding of the Tribunal to the effect that Onkar Singh driver of the bus was negligent to the extent of 30% and driver of the DCM Toyota bearing registration No.HR-01-9198 was negligent to the extent of FAO No. 253 of 1996 5 70%. So, the finding of the Tribunal in this regard stands affirmed. The other ground of appeal taken by the claimants is in respect of quantum of compensation. Regarding quantum of compensation, learned counsel for the appellants has submitted that the Tribunal has assessed the income of deceased-Onkar Singh as Rs.1800/- per month. The Tribunal has also observed that deceased was going 10-11 times in a month for trips and thereby earned additional income of Rs.1300/- per month from these trips. The Tribunal has taken Rs.1300/- as the expenses on maintenance of Onkar Singh and has further reduced the income to the extent of Rs.300/- per month from Rs.1800/- per month for his personal expenses. It is submitted that the Tribunal has in this manner taken Rs.1600/- as expenses for maintenance of deceased out of the income of Rs.3100/- (Rs.1800 +1300) per month, which is on higher side. The age of deceased has been taken as 32 years and the multiplier taken as 15 is also on lower side. He has relied upon the authority Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77 and on the strength of the same, it is argued that multiplier should have been 16. The counsel for Insurance Company has submitted that Rs.1300/- cannot be taken to be the income of deceased as he was paid for actual expenses incurred by him while he was on trips. The Tribunal has rightly deducted Rs.300/- per month for maintenance of Onkar Singh out of the income of Rs.1800/- per month. So, the dependency has been rightly taken as Rs.1500/- per month. The multiplier has been rightly applied. So, prayer has been made for dismissal of the appeal. I have carefully considered the submissions made by both the FAO No. 253 of 1996 6 sides and have gone through the records of the case. The Tribunal has taken the dependency of claimants as Rs.1500/-per month and yearly dependency has been taken as Rs.18,000/- by applying the multiplier of 15, the Tribunal has assessed the loss to the claimant as Rs.2,70,000/-. 70% of that amount has been calculated as Rs.1,89,000/- by the Tribunal payable to the claimants. The Tribunal has taken the income of deceased as Rs.1800/- per month and Rs.1300/- per month as extra income, for going on trips 10-11 times in a month. The deceased was driver of a bus. Whenever he has to go out side trip than he must have spent extra amounts for his maintenance. The Tribunal has taken this amount as Rs.1300/- for maintenance and has deducted further an amount of Rs.300/- from the income of deceased from the salary of Rs.1800/- per month. I am of the considered view that the deduction of Rs.300/-per month should not have been applied when Rs.1300/- has been taken as expenses of Onkar Singh on himself while residing in the house as well as on trips. Generally, the drivers used to save something from the trip income and the Tribunal should have taken that income for maintenance of the deceased while living in the house. So, in these circumstances, the dependency comes to Rs.21,600/-. The multiplier applicable to the age of 32 years as per authority of Smt.Sarla Verma and others' case (supra) is 16. So, the claimants are held entitled to claim Rs.3,45,600/- on account of death of Onkar Singh. An amount of Rs.9500/- is calculated as funeral expenses loss of consortium and love and affection etc in respect of deceased Onkar Singh. So, the claimants are held entitled to claim Rs.3,55,100/-. 70% of FAO No. 253 of 1996 7 that amount comes to Rs.2,48,570/-. So, in this manner claimants are held entitled to an amount of Rs.59,570/- amount in addition to the amount awarded by the Tribunal (Rs.2,48,570 minus Rs.1,89,000/-). The claimants are also held entitled to interest @ 7% from the date of appeal till realization. Out of the said amount Rs.15,000/- shall be paid to appellants Rajinder Kaur and Gurminder Singh and the remaining amount shall be paid to Manjit Kaur-appellant. The appeal stands disposed of with the above modifications. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February , 2010 sv