IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 178 of 2004. Judgment reserved on : 18.4.2009. Date of decision : April 27, 2009. Anju Dhiman & Others …Appellants. Versus Sat Pal & Others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. N.K.Thakur, Advocate for respondents No. 1 & 2. Mr. Ashwani K. Sharma, Advocate for respondent No.3. _____________________________________________________________ Kuldip Singh, Judge The appellants and one Bishan Dass were the claimants before learned Motor Accident Claims Tribunal - III, Kangra at Dharamshala in M.A.C.P.No.64-J/1999 decided on 12.3.2004 awarding Rs.5,04,000/- compensation along with 9% interest from the date of filing of the petition till realization inclusive of the amount, if any, paid to appellants under Section 140 of the Motor Vehicles Act, 1988 (for short ‘Act’) as per shares mentioned in the operative part of the impugned award. 2. The pleaded case of the appellants was that Mohinder Pal Dhiman was waiting for a bus at old bus stand, Una along with Gurcharan Singh a driver in his Department on 4.2.1999 as they were to go to Rest ___________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 House, Una. The bus bearing registration No. HP-20-5512 owned by respondent No.1 which was being driven by respondent No.2 came to the bus stand. Mohinder Pal Dhiman was in the process of boarding the bus but respondent No.2 rashly and negligently set the bus in motion, as a result of which Mohinder Pal Dhiman fell down on the ground and the rear left wheels of the bus crushed his waist. The bus was stopped by respondent No.2 on hearing the shouts raised by Gurcharan Singh who was not able to board the bus. The accident took place due to rash and negligent driving of respondent No.2. Mohinder Pal Dhiman was taken to Government Hospital, Una but he died in the hospital on the same day. FIR No. 84 was registered at Police Station, Una on 4.2.1999. The deceased was working as Excise and Taxation Inspector at Una and was drawing Rs.7,545/- salary per month. The appellants filed petition claiming Rs.15.00 lac compensation from the respondents along with 18% interest from the date of accident. The bus was insured with respondent No.3 at the time of accident. The appellants being widow, children, mother and unmarried sister of the deceased were dependent on the deceased. Bishan Dass father of the deceased who joined the appellants in filing claim petition died on 13.5.2004 and his name was deleted. 3. The petition was contested by respondent No.1. In the reply, he has denied most of the contents of the petition for want of knowledge. He has denied that accident took place due to rash and negligent act of respondent No.2. It was pleaded that deceased slipped on the road while he was running to board the bus and came under the bus. The deceased died due to his own negligence. The claim of the appellants was denied. It was also pleaded that compensation claimed is very excessive, in any case the respondent No.3 is to indemnify the liability of owner. The respondent No.2 has also contested the petition by filing reply. He has taken almost the same defence as was taken by respondent No.1 3 4. The respondent No.3 had also contested the petition by filing a reply and took preliminary objections that driver was not holding a valid and effective driving licence at the time of the accident. The vehicle No.HP-20- 5512 was not insured with respondent No.3. The deceased was in the process of boarding the bus, the risk is not covered under the terms and conditions of the policy, if any. On merits, respondent No.3 denied the claim of the appellants. The appellants filed a rejoinder and denied the stand of respondents No.1 & 2. The learned Tribunal had framed the following issues:- 1. Whether deceased Mohinder Pal Dhiman died due to rash and negligent driving of respondent No.2, who was driving bus No.HP-2-5512 on 4.2.1999 at about 5.15 P.M. ? OPP. 2. If issue No.1 is proved in the affirmative as to what amount the petitioners are entitled to? OPP. 3. Whether the respondent No.2 was not holding a valid and effective driving licence on the date of accident, if so its effect ? OPR. 4. Whether the vehicle No.HP-20-5512 owned by respondent No.1 is not insured with the respondent No.3 at the relevant time ? OPR-3. 5. Relief. The issue No.1 was answered in affirmative, issues No. 3 and 4 were decided against the Insurance Company and under issue No.2 it was held that appellants are entitled to Rs.5,04,000/-. The appellants have filed the present appeal for enhancement of compensation. 5. I have heard Mr. Shrawan Dogra, Advocate, learned counsel for the appellants, Mr. N.K.Thakur, Advocate, learned counsel for respondents No.1 and 2 and Mr. Ashwani K. Sharma, Advocate, learned counsel for respondent No.3 and have also gone through the record. Mr. 4 Dogra on behalf of the appellants has submitted that the learned Tribunal has assessed less dependency per month of the appellants and, therefore, has awarded compensation on the lower side. He has also submitted that learned Tribunal has not awarded any amount under conventional heads to the appellants. The compensation has been awarded only on the basis of income of the deceased but after wrongly calculating the amount. The learned counsel for respondents No. 1, 2 has submitted that the learned Tribunal has held respondent No.3 responsible to pay the award amount, therefore, the respondents 1, 2 having nothing to say. The learned counsel for the respondent No.3 has supported the award and has submitted that appellants are not entitled to enhancement of compensation. 6. The award dated 12.3.2004 has not been assailed by respondents No.1 to 3, therefore, as against them, the award has attained finality. The limited question left in the appeal is quantum of compensation. Ex.PW-1/A is the last pay certificate of deceased Mohinder Pal Dhiman showing that he was drawing Rs.7545/- per month. Ex.RX is the policy of bus No.HP-20-5512 for the period from 5.4.1998 to 4.4.1999. A copy of matriculation examination result card of Mohinder Pal Dhiman has been placed on record showing the date of birth 5.5.1962, which has not been disputed. Thus, on the date of accident, the deceased was 36 years of age. 7. The learned Tribunal in para 11 of the impugned award has taken the salary of deceased Rs.7545/- per month. On the basis of salary of the deceased, the dependency of the appellants to the extent of 2/3rd has been calculated at Rs.3000/- per month or Rs.36,000/- per annum. The dependency of appellants calculated by learned Tribunal on the basis of his last pay drawn is apparently wrong, 2/3rd of Rs.7545/- comes to Rs.5030/- and not Rs. 3000/-. In last pay certificate Ex.PW-1/A of the deceased Rs. 2500/- deduction on account of G.P.F. and Rs. 21 + Rs. 9 on account of group insurance has been shown. It is well known that the amount of Rs.21/- 5 is deducted towards saving fund and Rs.9/- towards insurance fund. The saving fund is refundable and insurance fund is non-refundable. Therefore, on the basis of last pay drawn of the deceased, his income from the salary comes to Rs.7545 - Rs.9/- = Rs.7536/- per month. It is now well settled that invariably 1/3rd amount from the income of the deceased is to be excluded towards the expenses of the deceased while calculating the dependency of the dependents. Therefore, after deducting 1/3rd amount i.e. Rs. 2512/- (7536/3) from the income of the deceased from his salary, the monthly dependency of the appellants comes to Rs.5024/- (Rs. 7536 – Rs.2512/-) or Rs. 5024 x 12 = Rs. 60,288/- per annum. 8. Mr. Ashwani K. Sharma, learned counsel for respondent No.3 – Insurance Company has relied Rajiv Rawal and another Vs. Man Singh and others, 2008 ACJ, 399, and has submitted that in that case the deceased was 38 years and the Court has adopted multiplier of 11. He has submitted that in the present case also, multiplier of 11 is the appropriate multiplier. He has also relied New India Assurance Co. Ltd. Vs. Kalpana and others (2007) 3 SCC 538, where the deceased was 33 years of age and the Supreme Court has applied the multiplier of 13. In Oriental Insurance Company Ltd. Vs. Jashuben and others (2008) 4 SCC 162 the deceased was 35 years and Supreme Court has allowed multiplier of 13. In U.P. State Road Transport Corpn. Vs. Krishna Bala and others, (2006) 6 SCC 249, the deceased was around 36 years and the Supreme Court has applied the multiplier of 13. The deceased was 36 years as per deceased’s matriculation certificate copy placed on record. There is no reason to disbelieve the copy of matriculation certificate of deceased which has been placed on record but not formally proved. Therefore, in the present case, 13 is the appropriate multiplier and on that basis compensation comes to Rs. 60,288 x 13 = Rs. 7,83,744/-. The learned Trubunal has awarded no amount to the appellants under well known conventional heads such as loss 6 of consortium, natural love and affection, performing last rites etc. In Master Shushank and others Vs. Ram Karan and others, Latest HLJ 2004 (HP) 1169 where the claimants were the minor children and on account of death of their mother, the then Hon’ble Chief Justice of this Court has allowed Rs.50,000/- on account of loss of love and affection. In that case, not only mother but the father of the children had also died in the accident. Therefore, in my opinion an amount of Rs.50,000/- on account of loss of consortium, natural love and affection and for performing last rites of the deceased would be just and equitable. The total compensation thus comes to Rs. 7, 83,744/- + Rs. 50,000/- = Rs. 8, 33,744/-. The learned Tribunal in the present case has awarded 9% interest from the date of filing of the petition till deposit/realization. In my opinion, the interest awarded by the learned Tribunal does not require any modification. Out of the compensation, the appellant No.5 now married shall get Rs.25000/-, appellant No.4 Rs.1,00,000/-, appellants No. 2 and 3 shall get Rs. 2,00,000/- each and appellant No.1 shall get rest of the amount i.e. Rs. 3,08,744/- along with 9% interest from the date of filing of the petition till deposit/realization. The vehicle was insured with respondent No. 3, therefore, whole of the amount of compensation as determined above, shall be paid by respondent No.3 to the appellants along with interest. The impugned award accordingly deserves to be modified. 9. No other point was urged. 10. The result of the above discussion, the appeal is allowed and award passed by the learned Motor Accident Claims Tribunal-III, Kangra at Dharamshala on 12.3.2004 in M.A.C. P. No.64-J/1999 is modified and an award of Rs.8, 33,744/- is passed in favour of the appellants and against respondents jointly and severally along with 9% interest from the date of filing of the petition till deposit/realization. The appellant No.5 shall get Rs.25000/- appellant No.4 Rs.1, 00,000/-, appellants No. 2 and 3 shall get Rs. 2,00,000/- 7 each and appellant No.1 shall get rest of the amount i.e. Rs. 3,08,744/- along with 9% interest from the date of filing of the petition till deposit/realization. The respondent No.3/ insurer shall pay the award amount alongwith interest as held above. The appellants No. 2 and 3 have been shown as minor in the memo of parties, if they are still minor, then the amount awarded to them shall be invested in some nationalized bank till they attain majority. No costs. April 27, 2009. (Kuldip Singh) (GR) Judge.