1 FAO NO. 4102 of 2008 IN THE HIGH COURT OF PUNJAB & HARYANA AT HANDIGARH FAO NO. 4102 of 2008 Date of order: 31.10.2011 Kamla Devi and others ..... Appellants Versus Abdul Kadir and others ..... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Ashit Malik, Advocate for the appellants. Mr. R.N. Singal, Advocate for Mr. Vivek Singal, Advocate for respondent no.3-Insurance Company. **** Vijender Singh Malik, J. This is an appeal brought by the claimants for enhancement of compensation. The appellants had brought a claim petition under section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') seeking compensation in a sum of Rs.40,00,000/- for the death of Sham Lal in a road side accident that occurred on 29.03.2006. The case of the claimants for grant of compensation is as under:- On 29.03.2006, Sham Lal was going from Police Lines Panipat to Samalkha alongwith Head Constable Krishan Kumar for taking treatment from a hospital at Samalkha. They were travelling in a three wheeler bearing registration no.HR-67/2574. Sudesh Kumar Bhatia was also travelling in the said three wheeler. The said three wheeler was 2 FAO NO. 4102 of 2008 driven by its driver very carefully and at a moderate speed. At about 6.20 PM, they were near Anmol Dhaba. In the meanwhile, a trailer bearing registration no. HR-38-L/8723 came from the side of Panipat i.e. from the back side of the three wheeler. It was driven by Abdul Kadir, respondent no.1 in a rash and negligent manner and at a very high speed. It had hit the three wheeler at its back, on account of which, the deceased alongwith other occupants fell down on the road and suffered grievous injuries . Sham Lal died at the spot on account of those injuries. He was aged 50 years at the time of the accident. He was working as Assistant Sub Inspector with Haryana Police and was getting Rs.18,000/- per month as salary. A sum of Rs.50,000/- is stated to have been spent on transportation of his dead body and his last rites. Claim against respondent no.1 was withdrawn and the petition against him had been dismissed as withdrawn vide order dated 08.03.2007. Respondent no.2 has denied the accident to have occurred due to rash and negligent driving of trailer by respondent no.1. It has been averred that a false criminal case has been registered against respondent no.1. Respondent no.3 has taken some preliminary objections regarding locus standi of the petitioners as well as misjoinder and non- joinder of parties. False claim petition is said to have been filed. It has denied respondent no.2 to have informed it of the alleged accident. The other averments of the claimants have been denied by respondent no.3 also. 3 FAO NO. 4102 of 2008 This claim petition was consolidated with other claim petitions and on account of the same, the following consolidated issues were framed:- “1- Whether the motor vehicular accident which took place on 29.03.2006 was caused due to rash and negligent driving of vehicle of HR 38-L/8723 Abdul Kadir respondent no.1 and in which Sham Lal son of Jale Ram, Sudesh Kumar Bhatia son of Suraj Prakash Bhatia died and claimants Gajudeen, Aub Ali and Smt. Saroj Bala sustained injuries. If so its effect ?OPP 2- If issue no.1 is proved, whether the claimants Kamla Devi etc. are entitled to receive any amount of compensation for the death of Sham Lal, claimants Smt. Devinder Bhatia and others are entitled to receive compensation for the death of Sudesh Kumar Bhatia and Claimants Gajudeen, Aub Ali and Smt. Saroj Bala are entitled to receive any amount of compensation for the injuries received by them. If so , how much and from whom ?OPP 3- Whether respondent no.3 is not liable to pay the compensation in view of the preliminary objections taken by it in its written statement?OPR3 4- Relief.” Taking evidence of the parties and hearing learned counsel 4 FAO NO. 4102 of 2008 representing them, learned Motor Accidents Claims Tribunal(Fast Track Court), Panipat (for short 'learned Tribunal') has awarded a sum of Rs.13,46,104/- as compensation to the claimants, vide award dated 20.05.2008. Dissatisfied with the aforesaid award, the claimants have brought this appeal. I have heard Mr.Ashit Malik, learned counsel for the appellants and Mr.R.N. Singal, learned counsel for respondent no.3. I have gone through the record carefully. Learned counsel for the appellants has submitted that the dependency of the claimants should have been assessed by learned Tribunal at 3/4th of the salary of the deceased instead of 2/3rd as has been done by it. He has further submitted that the deceased was in Government service and was a permanent employee and although he was aged 52 years at the time of his death and his case for addition to the income for future prospects is not covered by the decision of Hon'ble Supreme Court of India in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77 , yet some addition was required to be made to the salary of the deceased as per a later decision of Hon'ble Supreme Court of India in Sri K.R.Madhusudhan and others v. Administrative Officer and another 2011 (4) SCC 689 . Learned counsel for respondent no.3 has submitted on the other hand that learned Tribunal has taken the income of the deceased as salary of 13 months . According to him, the salary of one month is 5 FAO NO. 4102 of 2008 granted to the employees of Haryana Government as bonus, which is not a regular feature as it may not be given in some year. According to him, this is sufficient addition to the income of the deceased for assessing compensation. He has further submitted that appellants no.2 to 4 are the major sons of the deceased and they were not dependent on him. He has further submitted that for this reason, the dependency of the claimants could not be assessed above 2/3rd income of the deceased. If a person is survived by his major sons, who were not really dependents upon him, it cannot be said that no compensation is to be awarded to them. A major son also looks to his father for financial assistance and it amounts to his dependency. The statement regarding uncertainty of bonus and for that reason its exclusion from the salary and dependency of the claimants is also not tenable. The bonus is a perk and it is to be included in the salary to compute the dependency of the claimants. If it was paid for the year in which the death has occurred, then the annual income of the deceased would have to be taken by including the bonus. Bonus has been held to be a part of the salary by Hon'ble Supreme Court of India in National Insurance Company Ltd. v. Indira Srivastava and others 2008(1) RCR (Civil) 359. Therefore, the said amount is not to be excluded while computing the dependency of the claimants. Coming to the first submission made by learned counsel for the appellants, dependency of the claimants has been assessed at 2/3rd of the income of the deceased by learned Tribunal. It has been rightly pointed out by learned counsel for the appellants that as per Smt. Sarla 6 FAO NO. 4102 of 2008 Verma and others' case (supra) the deduction has to be 1/4th where the number of the dependent family members has been 4 to 6. In the case in hand, the widow and three sons of the deceased are the claimants and looking to their number, the cut of 1/4th is required to be made to assess compensation. Now comes the second part of the argument of learned counsel for the appellants. He has submitted that though no addition to the income for future prospects has been recommended in Smt. Sarla Verma and others' case (supra) where the age of the deceased was more than 50 years yet in Sri K.R.Madhusudhan and others' case (supra) the same is recommended even in case of a person dying after attaining the age of 50 years. The rule of thumb adopted in Smt. Sarla Verma and others' case (supra) has been distinguished in the later case for the cases where the evidence showed that the income of the deceased would have definitely increased after the age of his death. In the case in hand, the deceased has been Assistant Sub Inspector with police, who would have earned at least annual increments even if no higher grade became available to him. So in the light of Sri K.R.Madhusudhan and others' case (supra) addition to income is required to be made in this case for future prospects also. The annual income of the deceased has been found by learned Tribunal at Rs.1,82,186/- As the deceased was left with a comparatively short period in service, I take his annual income at Rs.2,00,000/- after adding Rs.17,814/- for future prospects of income. Applying the cut of 1/4th, the annual dependency of the claimants comes 7 FAO NO. 4102 of 2008 to Rs.1,50,000/-. Multiplying the same with 11, the multiplier applied by learned Tribunal and held suitable for the case in Smt. Sarla Verma and others' case (supra) , the compensation payable to the claimants comes to Rs.16,50,000/-. To it a sum of Rs.10,000/- on account of loss of consortium, Rs.5000/- as loss of estate and Rs.5000/- for funeral expenses have to be added and in this way, the claimants are found to be entitled to Rs.16,70,000/- as compensation. In these circumstances, the appeal is allowed and the compensation awarded to the claimants by learned Tribunal is enhanced from Rs.13,46,104/- to Rs.16,70,000/-. This amount shall be shared by respondents no. 2 and 3. (VIJENDER SINGH MALIK) JUDGE 31.10.2011 dinesh