IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 117 of 2002. Judgement reserved on: 3.11.2008 Date of decision: November 7, 2008. Smt. Muni Devi ….. Appellant. Vs. Himachal Road Transport Corporation & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Raman Sethi, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate vice Mr. Ashok Sharma, Advocate, for respondent No.1. Mr. C.N. Singh, Advocate, for respondent No.2. Mr. Deepak Bhasin, Advocate, for respondents No. 4 & 5. Kuldip Singh, Judge. This appeal for enhancement of compensation has been directed against the award dated 7.12.2001 passed by learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, in MAC Case No. 41 of 2000. 2. The facts in brief are that Sohan Lal Mehta on 10.9.2000 at about 7.45 p.m. was driving motor cycle No. HP-06-2465 and Des Whether the reporters of the local papers may be allowed to see the Judgment? …2… Raj aged 32 years was the pillion rider on that motor cycle, they were going from Rampur to Nogli. At place Khopri near temple, bus No. HP-07-3332 owned by respondent No. 1 and driven by respondent No.2 rashly and negligently knocked down motor cycle No. HP-06- 2465, as a result of which Sohan Lal Mehta and Des Raj were thrown off the motor cycle, both sustained multiple injuries and later on succumbed to their injuries. Des Raj was postgraduate in History and had been doing tuition work besides attending agriculture operations. He was earning Rs.6000/- per month from all sources. The parents were dependant upon him, they filed claim petition, claiming Rs.7,00,000/- compensation on account of death of their son Des Raj. In the claim petition, the owner of motor cycle Tilak Raj was impleaded as respondent No. 3. The insurance company of the motor cycle was impleaded through Divisional Manager as well as Branch Manager. 3. The respondents No. 1 and 2 contested the claim petition and admitted the ownership of the bus. The rash and negligent driving on the part of respondent No.2 was denied. It was pleaded that motor cycle No. HP-06-2465 was being driven rashly and negligently, as a result of which motor cycle struck against the bus. The respondents No. 1 and 2, however, admitted the accident and the death of Des Raj. They denied their liability to pay any compensation. The respondents No. 1 and 2 had expressed their ignorance about the income of the deceased Des Raj. 4. The respondent No. 3 admitted the ownership of motor cycle No. HP-06-2465 and the fact that Sohan Lal Mehta was driving …3… the motor cycle at the time of accident and Des Raj was the pillion rider on the motor cycle. The respondent No.3 took the plea that accident took place due to rash and negligent driving on the part of bus driver. The motor cycle was insured with respondents No. 4 and 5 and liability, if any, is of the insurance company to pay compensation. He denied that Des Raj was earning Rs.6000/- per month. 5. The respondents No. 4 and 5 contested the claim petition and admitted that motor cycle No. HP-06-2465 was insured on 10.9.2000. They denied the accident and death of Des Raj. The respondents No. 4 and 5 took the plea that Sohan Lal Mehta was not holding valid and effective driving licence to drive the motor cycle at the time of accident. The respondent No. 3 had contravened the terms and conditions of the insurance policy. They denied the liability to pay any compensation. The learned Tribunal held that accident took place due to rash and negligent driving of motor cycle No. HP- 06-2465 and awarded Rs.1,20,000/- compensation in favour of the claimants and against respondents No. 3 to 5. The motor cycle was insured with respondents No. 4 and 5 therefore, they were directed to deposit the compensation amount within two months from the date of award, failing which interest at the rate of 12% per annum shall be payable from the date of award till realization. Out of the award amount, Muni Devi was awarded Rs.80,000/- and Salig Ram Rs.40,000/-. The appeal was filed by the claimants for enhancement of compensation amount. Salig Ram appellant No. 2 had died during the pendency of the appeal and his name was ordered to be deleted. …4… 6. I have heard Mr. Raman Sethi, Advocate for the appellant, Mr. Adarsh Sharma, Advocate appearing vice Mr. Ashok Sharma, Advocate, for respondent No. 1, Mr. C.N. Singh, Advocate, for respondent No.2, Mr. Deepak Bhasin, Advocate, for respondents No. 4, 5, none appeared for respondent No. 3. I have gone through the record. The learned counsel for the appellant has submitted that the learned Tribunal has assessed the income of the deceased on the lower side, which has resulted into awarding of less compensation to the claimants. He has submitted that no amount of compensation has been awarded to the claimants under known conventional heads. The interest has been wrongly awarded conditionally. The learned counsel appearing on behalf of the respondents have supported the impugned award. 7. The learned counsel for the appellant has stressed that learned Tribunal in the impugned award has noticed that Des Raj deceased was postgraduate in History and was not expected to go in for odd jobs, even if it was not proved that he was actually earning any income in that case also prospective loss could be determined after taking into consideration the possible earning capacity of the deceased. Mr. Sethi has submitted that learned Tribunal, however, while assessing the income of the deceased treated him as unskilled labour by taking the income of the deceased at Rs.1600/- per month. The perusal of the impugned award reveals that there is substance in the submission of Mr. Sethi that learned Tribunal has taken the income of the deceased at Rs.1600/- per month by treating him as …5… unskilled labour. It has come on record that deceased was M.A. in History. 8. PW 1 Muni Devi has stated that deceased was paying her Rs.6000/- per month. The deceased was not married. She has also stated that deceased used to take tuitions. He also used to work in orchard. Mr. Sethi has pointed out the cross examination of PW 1 Muni Devi conducted on behalf of respondent No. 3 wherein suggestion was given to her that income of the deceased was Rs.3000/- to Rs.4000/- per month. The claimants have not examined any student, parents of students whom the deceased used to teach by way of tuitions. There is no other worth believing evidence on record to show that deceased was earning more than Rs.6000/- per month and from that income he used to pay Rs.6000/- to his mother PW 1 Muni Devi. The bald statement of PW 1 on this point cannot be believed in absence of corroboration. In any case, even if the income of the deceased is taken at Rs.3000/- per month as suggested to PW 1 in her cross examination conducted on behalf of respondent No. 3 in that case also it will not make any difference so far as the assessment of compensation is concerned. It has come on record that deceased was unmarried aged about 32 years and the claimants were in the age group around 60 years. In New India Assurance Company versus Prem Chand and others, Latest HLJ 2007 HP 1046, a Division Bench of this Court has held that in normal circumstances when the parents were the claimants, their dependency is to be assessed at 1/3rd of the total income. This is because the child would in normal course get married in near future. …6… Therefore, even if the income of the deceased is taken at Rs.3000/- per month, still the dependency of the parents would come to Rs.1000/- per month and the learned Tribunal has actually taken the dependency of the parents at Rs.1000/- per month while assessing the compensation. The learned Tribunal has adopted the multiplier of 10, and in my opinion keeping in view of the age of the deceased and the claimants, the multiplier adopted by the learned Tribunal appears to be reasonable. Thus the amount of compensation remains at Rs.1,20,000/- even if the income of the deceased is taken at Rs.3000/- per month, as contended by Mr. Sethi. 9. The Tribunal however, has not awarded any amount to the claimants under other known conventional heads of compensation. In Mohd. Khalil and another versus Haryana Roadways and others 2004 ACJ 1971, Rs.15,000/- were awarded towards funeral expenses, loss to estate etc., in addition to amount of compensation on the basis of loss of dependency. In my opinion, in the present case also the appellant is entitled to Rs.15,000/- on account of funeral expenses, loss to estate etc. in addition to amount of compensation Rs.1,20,000/- due to loss of dependency. Thus total amount of compensation comes to Rs.1,35,000/-. The learned Tribunal has wrongly allowed conditional interest at the rate of 12% per annum. The appellant is entitled to interest at the rate of 9% per annum on the amount of compensation of Rs.1,35,000/-from the date of filing of the petition till realization. The award of the learned Tribunal to this extent requires modification and is accordingly modified. …7… 10. No other point was urged. 11. As a result of the above discussion, the appeal is partly allowed. The impugned award passed by learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, in MAC Case No. 41 of 2000, is modified and an award of Rs.1,35,000/- alongwith interest at the rate of 9% per annum from the date of the filing of the petition i.e. 10.11.2000 till realization is passed in favour of the appellant Muni Devi and against the respondents No. 3, 4 and 5. The motor cycle No.HP-06-2465 was insured with respondents No. 4 and 5, therefore, the entire amount of compensation shall be paid/ deposited by respondents No. 4 and 5. The appellant Muni Devi is the legal representative of deceased appellant No. 2 Salig Ram being his widow, therefore, entire amount of compensation as held above shall be paid to appellant Muni Devi the mother of the deceased alongwith up to date interest by respondents No. 4 and 5. No costs. November 7, 2008. ( Kuldip Singh ) (Hem) Judge.