FAO NO.1719/2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO NO.1719/2008 Date of decision:16.4.2009 Battan Chand and another ........ Appellants. v. Kirpal Singh and others ........ Respondents. CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present:- Mr.Ashwani Arora,Advocate for the appellants-claimants. Mr.R.D.Gupta,Advocate for respondent nos. 1 and 2- driver and owner respectively. Mr.R.M.Suri,Advocate for respondent no.3-Insurance Co. JASWANT SINGH,J. Appellants-Battan Chand and his wife Smt. Mukhtiari, have filed this appeal, seeking enhanced compensation, against the award dated 9.9.1995 passed by the learned Motor Accident Claims Tribunal, Chandigarh (for short Tribunal) whereby a sum of Rs.40,800/- alongwith interest @ 12% per annum from the date of filing of the claim petition till realization, was awarded to them as compensation on account of death of their unmarried son Dharam Pal (aged 25 years) in a motor vehicular accident that took place on 24.11.1990, involving Truck No. CHW-7548 (for short offending vehicle) driven by respondent no.1 Kirpal Singh. owned by respondent no.2 Inder Malik FAO NO.1719/2008 2 and insured by respondent no.3-National Insurance Company. Respondents 1 and 2, despite various opportunities could not prove that on the date of accident respondent no.1- driver was holding a valid driving license to drive the offending vehicle, hence both of them were jointly and severally held liable to pay the compensation. It is pertinent to mention here that previously appellants- claimants filed FAO No.302 of 1996 seeking enhancement of compensation. In the said appeal respondent no.2-owner had filed CM No.17194-CII of 2006, for placing on record additional evidence in regard to the driving license of respondent no.1-driver. A learned single Judge of this Court vide orders dated 13.9.2006 allowed the said application and driving license of the driver was taken on record by way of additional evidence. Although the appeal bearing FAO No. 302 of 1996 was filed by the claimants, however, on the request of the respondent-owner of the offending vehicle, who had already satisfied the award, to decide his entitlement to recover the amount from respondent no.3- insurer, vide aforesaid order dated 13.9.2006 passed by this Court, the appeal stood disposed of and the matter was remanded to the learned Tribunal to decide the issue within a period of two months. No findings regarding the correctness of assessment of income, dependency and/or applicable multiplier were given. In compliance with the aforesaid directions, the learned Tribunal vide order dated 16.1.2008 held that on the date of accident FAO NO.1719/2008 3 respondent no.1-driver was holding a valid driving license and hence respondent no.2 was entitled to recover the compensation amount from respondent no.3-insurer. It is in these circumstances that the present appeal has been filed by the claimants-appellants. Learned counsel for the appellants-claimants has challenged the impugned award firstly on the ground that assessment of monthly income of the deceased by the learned Tribunal as Rs.1200/- per month is on the lower side, especially when learned Tribunal, on the basis of oral as well as documentary evidence had itself found that there was nothing to show that the deceased was not engaged in business and was not having income from commercial activity (i.e. selling Golgappas). It is submitted by the learned counsel for the appellants that in fact the deceased was engaged in the business of selling Golgappas on a Rehri and earning Rs.3000/- per month from the said business. The next ground on which the impugned award has been challenged is that learned Tribunal erroneously held that had he been alive, the deceased would have contracted marriage within next three years and further eight years thereafter (i.e. after marriage) he would have stopped supporting the appellants-parents. It is submitted that during their cross examination it was specific stand of the appellants that the deceased did not want to get married. On the other hand, learned counsel for respondents 1 to 3 FAO NO.1719/2008 4 submit that learned Tribunal has rightly assessed the monthly income of the deceased and dependency of the appellants upon him. After hearing the learned counsel for the parties and perusing the record, I find substantial force in the submissions of the learned counsel for the appellants. A perusal of the impugned award reveals that in support of their claim, appellants-claimants, in order to prove that the deceased was engaged in commercial activity, had produced a license to run a tea stall for the years 1985-86 and 1987-88. Besides that they also produced receipts in that regard as Exhibits P1 to P8 for the period from 1979 to 1987. The accident in question claimed the life of the deceased on 24.11.1990. Though no license/receipt in respect of the relevant period i.e. for the year 1990 was produced, yet it cannot be assumed that at the time of his death deceased was leading an idle life. PW6 Basti Ram an eye witness deposed that at the time of accident the offending vehicle dragged the rehri and the deceased to some distance. This goes to show that even at the time of his death the deceased was on his way to earn his livelihood. Certainly, he was not plying rehri at that time for pleasure sake. Thus, it can safely be inferred that the deceased was engaged in the business of selling Golgappas on a Rehri. So far as monthly income of the deceased and dependency of the claimants is concerned, it was specific stand of the claimants before the Tribunal that the deceased was earning Rs.100/- per day FAO NO.1719/2008 5 (after deducting the expenses) by selling Golgappas. No evidence to rebut the stand of the claimants was produced by the respondents. In these circumstances, it is not understandable as to how the learned Tribunal has assessed the monthly income of the deceased as Rs.1200/-. The relevant para 27 of the impugned award, assessing the income of the deceased as Rs.1200/- is reproduced as under:- “27. His income can safely be put as Rs.1200/- per month. He was young un-married boy. He must be spending at least half of income himself. Rest of his income was going to his parents.......” The next question that arises for consideration is that if the deceased was engaged in the business of selling Golgappas on a Rehri, has the learned Tribunal erred in assessing his monthly income as Rs.1200/- p.m. The answer emphatically is yes. Reference in this regard can be made to H.S.Ahammed Hussain v. Irfan Ahammed 2002(6) SCC 52. In the reported case Vazeer and Rafeeq-sons of appellants-claimants therein had died in a motor vehicular accident. They were working as Coolie on the offending truck which met with an accident on 1.6.1996 claiming the lives of the said Vazeer and Rafeeq. The learned Tribunal, in two separate claim petitions filed by the parents of the deceased, assessed their monthly income as Rs.3000/-. The award of the Tribunal was challenged by the insured and the insurer by filing two separate appeals before the Karnataka High Court. The learned High Court, disbelieved the evidence in relation to income FAO NO.1719/2008 6 of the two victims and assessed the income of each of the deceased as Rs.1500/- per month that was prescribed as national income as a non- earning person under the Second Schedule to the Act. After deducting 1/3rd towards personal and living expenses of the deceased, the contribution towards family was assessed at Rs.12,000/- per annum. Claimants appellants went in appeal challenging the said judgment of the Karnataka High Court. Hon'ble Apex Court did not interfere with the impugned judgment insofar as monthly income assessed was concerned. While doing so, it was observed that this being a question of fact, it was not possible to interfere with the same especially when it could not be pointed out that there was any error therein. The facts, in the present case are however on a better footing. As already noticed above, deceased Dharam Pal aged 25 years was stated to be selling Golgappas on a Rehri and earning Rs.100/- per day after deducting expenses. No evidence to rebut the same was adduced by the driver/owner or insurer of the offending vehicle. In these circumstances, assessment of the monthly income of the deceased as Rs.1200/- by the learned Tribunal does not seem to be justified. In my opinion, as already noticed above, in the absence of any rebutting evidence and treading safely, the monthly income of the deceased could not be held to be less than Rs.1500/-, at the time of the accident on 24.11.1990. Accordingly, the monthly income of the deceased is safely assessed at Rs.1500/- per month. FAO NO.1719/2008 7 Now assessing the dependency of the appellants, it has come on record that the deceased was a bachelor aged 25 years. The learned Tribunal, after deducting ½ towards personal expenses assessed monthly dependency of the claimants as Rs.600/-. This, in my considered opinion is not at all justified. The deceased was having two younger brothers and parents. In the absence of any evidence to the contrary, it cannot be assumed that he was spending more than 1/3rd towards his personal expenses, as is the usual criteria for determining the dependency. Reliance is placed upon judgment of the Hon'ble Supreme Court in Bilkish v. United India Insurance Co.Ltd. And another, 2008(4) SCC 259, wherein it was held that the bachelor deceased could not have spent more than 1/3rd of his total income for personal use and thus the loss of dependency in the case of a bachelor was assessed as 2/3rd. Therefore, after deducting 1/3rd assessed monthly income of the deceased, I determine the monthly dependency of the appellants at Rs.1000/- per month. Once the monthly income/dependency has been arrived at the next point that comes up for consideration is as to what should be the appropriate multiplier in this case. The learned Tribunal has adopted a multiplier of 3 for the first 3 years and a multiplier of 8 for the next 8 years on the assumption that the deceased, a bachelor of 25 years in any case would have got married within three years. The relevant para 28 of the impugned award reads as under:- FAO NO.1719/2008 8 “28. The deceased was of 25 years and in any case was to marry within at the most 3 years; this saving of Rs.600/- could have gone to the eligible claimants from his only for other three years. The amount thus comes to Rs.600x12x3=Rs.21,600/-. The amount of compensation in this segment thus comes to Rs.21,600/-. After marriage he could not have been able to spare more than Rs.200/- for his parent. With the evolutionary growth of his family, by and by this dependency was also to finish. This could have lasted for not more than eight years after his marriage. The amount of compensation in the second segment thus would be Rs.200x12x8= Rs.19,200/-. The total amount of compensation payable to the claimants No.1 and 2 who are parents of the deceased thus comes to Rs.21,600+ Rs.19,200=Rs.40,800/-.” In my opinion, the approach adopted by the learned Tribunal is wholly erroneous. There is nothing at the command of this Court to determine as to for how many years the deceased could have maintained his celibacy, so as to arrive at an appropriate multiplier. The age of the deceased as well as that of the appellants-claimants is required to be considered. Guided by Second Schedule of the Motor Vehicles Act,1988, in my opinion, the multiplier of 8 would be just and FAO NO.1719/2008 9 appropriate in the present case. Accordingly, taking the monthly dependency at Rs.1000/- and applying the multiplier of 8 the total compensation works out to Rs.1000x12x8=96,000/- i.e. Rs.55,200/- over and above the compensation awarded by the learned Tribunal. Besides that I also deem it just and appropriate to award another sum of Rs.10,000/- towards funeral expenses and loss of love and affection to parents, thus totaling the enhanced compensation to Rs.65,200/- which would carry interest @ 9% per annum, from the date of filing of the claim petition till its realization. The enhanced compensation would be paid jointly and severally by respondents 1 to 3 within a period of three months from today. The appeal stands partly allowed in the aforementioned terms. Disposed of. 16.4.2009. (Jaswant Singh) joshi Judge