FAO No. 5833 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) FAO No. 5833 of 2009 (O&M) Date of decision : 24.5.2010 ... Ashwani Kumar Bhandari ................Appellant vs. Darshna and others .................Respondents 2) FAO No. 33 of 2010 (O&M) ... Darshna and others ................Appellants vs. Dr. Ashwani Kumar Bhandari and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. L.M. Suri, Senior Advocate with Sh. Neeraj Khanna, Advocate for the appellant ( in FAO No. 5833 of 2009) Ms. Ekta Thakur, Advocate for the appellant-claimants (in FAO No. 33 of 2010) Sh. R.C. Gupta, Advocate for the Insurance company. ... K.C. Puri, J. (Oral) Vide this judgment, I intend to dispose of two appeals bearing FAO No. 33 of 2010 preferred by the claimants for enhancement and FAO No. 5833 of 2009 preferred by the owner of FAO No. 5833 of 2009 -2- the offending vehicle for dismissal of the claim petition. Shorn of unnecessary details, Darshna – mother, Hussan Chand – father and Annu – sister of Bharat Bhushan-deceased, have preferred the claim petition on account of his death on 14.11.2007, in a motor vehicular accident. As per case of the claimants on 14.11.2007, at about 8.00 A.M. Bharat Bhushan was going to Pharmacy Department driving his motorcycle bearing registration No. CH-03-Y-0458. When he reached near Hostel No.4, Panjab University, Sector 14, Chandigarh, in the meantime, car No. CH-030K-5429 being driven by Ashwani Kumar Bhandari – respondent No.1 came from the side of Hostel No.7 of Panjab University, Sector 14, Chandigarh, in a rash and negligent manner without blowing any horn and hit Bharat Bhushan. As a result of which he received multiple injuries on the vital parts of his body. He was taken to Government Hospital, Sector 16, Chandigarh, from where he was referred to PGI and ultimately he succumbed to his injuries on 30.11.2007. Claimants have claimed an amount of Rs.15 lacs alongwith interest. It is alleged that deceased was aged 19 years on the date of death. He was a student of 3rd year B. Pharmacy, Panjab University, Chandigarh and was enjoying a good health. He was the only son of his parents. He was very intelligent and remained 1st class throughout his academic career. On put to notice, respondent No.1 filed the written statement denying the accident in question. Respondent No.2 contested the claim petition pleading that respondent No.1 is not the registered owner of the car bearing FAO No. 5833 of 2009 -3- registration No. CH-030K-5429, and as such the petition is liable to be dismissed for non-joinder of necessary parties. It is further pleaded that the amount claimed is excessive. It is also alleged that respondent No. 1 was not holding a valid and effective driving licence. From the pleadings of the parties, the following issues were framed:- 1. Whether accident in question took place on account of rash and negligent driving of vehicle bearing No. CH-03-K- 5429 by respondent No.1, if so, whether Bharat Bhushan died due to injuries sustained by him in the accident in question? OPP. 2. If issue No. 1 is decided in favour of claimants, whether claimants are entitled for any compensation, if so, how much and from whom? OPP. 3. Whether respondent no.1 was not holding valid and effective driving licence at the time of accident, if so, its effects? OPR-2 4. Relief. The claimants in order to prove their case, examined Darshna -claimant as PW-1. The claimants also examined Hussan chand as PW-2. In rebuttal, Ashwani Kumar Bhandari appeared as his own witness. Learned Tribunal after appreciating the evidence on the file, returned the finding on issue No.1 in favour of the claimants. Issue No.3 was decided against the Insurance company and while FAO No. 5833 of 2009 -4- determining issue No.2, income of the deceased was taken as Rs.10,000/- per month. The dependency of the claimants was taken to the extent of 50%. So, after deducting 50% amount on account of personal expenses of the deceased, the monthly dependency was taken as Rs.5,000/- and the yearly dependency was taken as Rs.60,000/- (5,000 X 12). The multiplier of 18 was applied and the amount of compensation was calculated as Rs.10,80,000/-. An amount of Rs.5,000/- was allowed on account of last rites. An amount of Rs.20,000/- was allowed on account of expenses on the treatment of the deceased and in this manner, the amount was calculated as Rs. 11,05,000/- . Feeling dissatisfied with the said award, Ashwani Kumar Bhandari has preferred FAO No. 5833 of 2009 for dismissal of the claim petition, whereas claimants have preferred FAO No. 33 of 2010, for enhancement of compensation. Since, both these appeals arise out of the same award, as such, the same are being disposed of by common judgment. Sh. L.M. Suri, Senior counsel for the appellant has submitted that finding of Tribunal on issue No. 1 cannot be accepted. It is submitted that claimants have examined only one witness PW-2. It is submitted that this witness has not stated that deceased was driving at a fast speed. He has stated that Ashwani Kumar Bhandari was driving the vehicle negligently. It is his opinion only. So, it cannot be said that the claimants have been able to prove issue No.1. In rebuttal Ashwani Kumar Bhandari has appeared as his own witness and has categorically stated that it was on account of rash and FAO No. 5833 of 2009 -5- negligent driving of deceased that accident has taken place. So, prayer has been made for returning the finding on issue No.1. I have considered the said submission, but do not find any force in that submission. It is a civil case and it has to be decided on preponderance of evidence. Ashwani Kumar Bhandari in the written statement has denied the accident altogether. He has nowhere pleaded that accident has taken place due to rash and negligent driving of the deceased. A party cannot be allowed to travel beyond his pleadings. So, the evidence of Ashwani Kumar Bhandari, wherein he has stated that accident has taken place due to rash and negligent driving of the deceased cannot be accepted. On the other hand, PW-2 Hussan Chand has categorically stated that accident has taken place due to rash and negligent driving of respondent No.1-now appellant. He has stated that the vehicle of appellant struck against the motorcycle of deceased. So, in these circumstances, the finding of the learned Tribunal on issue No.1 stands affirmed. The Insurance company has not preferred any appeal and as such the finding of the Tribunal on issue No.3 also stands affirmed. Now, the moot point for consideration is regarding the quantum of compensation. The case of the appellant-Ashwani Kumar Bhandari is that the amount is excessive, whereas the case of the claimants is that it is on lower side. Learned counsel for the appellant has submitted that in this case the deceased was a bachelor. The amount of income of FAO No. 5833 of 2009 -6- Rs.10,000/- per month, taken by the Tribunal is on higher side. It is further contended that multiplier of 18 has been applied. In case of death of a bachelor son, the age of parents is relevant. To support this contention, learned counsel for the appellant has relied upon the authorities reported as Bijoy Kumar Dugar vs. Bidyadhar Dutta and others ( 2006-2) PLR 329, Municipal Corporation of Greater Bombay vs. Shri Laxman Iyer and another (2004-1) PLR 446, New India Assurance Co. Ltd. vs. Smt. Shanti Pathak and others AIR 2007 Supreme Court 2649 and Smt. Parkash and another vs. Jagdish Singh and others (2004-1) PLR 55. On the other hand, learned counsel for the claimants has submitted that deceased was a young person and would have earned much more than Rs.10,000/- per month. Learned counsel for the claimants has relied upon the authority reported as Dr. Deo Patodi and another vs. Devendra Arora and another II (2007) ACC 236 (DB), Madhya Pradesh High Court and on the strength of the same, it is submitted that income of the student of B.B.A. has been taken as Rs.18,000/- per month. It is further contended that according to authority reported as Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009(3) RCR (Civil) 77, the multiplier applicable for the age group of 15 to 25 is 18 and the multiplier has been rightly applied by the Tribunal. So, prayer has been made for enhancement of compensation. I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case. FAO No. 5833 of 2009 -7- The first point which is required to be determined, is whether the multiplier is to be applied according to the age of the parents or in accordance with the age of the deceased, if deceased is a bachelor. In Bijoy Kumar Dugar's case (Supra), Shri Laxman Iyer's case (Supra) and Smt. Shanti Pathak 's case (Supra), it has been held that age of the parents is relevant for determining the multiplier. However, reliance has been placed by counsel for the claimants on Smt. Sarla Verma's case (Supra). I have gone through that authority. In that authority, it has not been specifically discussed anywhere whether the age of the parents is to be considered. In that authority, in order to streamline the multiplier the effect of all previous authorities was discussed and ultimately, guidelines were issued to decide the accident cases in future. So, I am of the considered view that age of the parents is relevant for determining the multiplier, on the facts of the present case. Darshna-claimant while appearing as her own witness has given her age as 41 years. She is the main person who will get the compensation. So, the age of Darshna is relevant. As per Smt. Sarla Verma's case (Supra), the multiplier of 14 is applicable for the age group of 41 to 45 years. Now, the other question, which is required to be determined is whether the income of Rs.10,000/- assessed by the Tribunal requires any interference. In my view, that assessment made by the Tribunal does not call for any interference. The deceased was a young person having good academic record. So, in these circumstances, the amount of Rs.10,000/- taken by the Tribunal as income of the deceased, does not call for any interference. So, for as the authority FAO No. 5833 of 2009 -8- in Dr. Deo Patodi's case (Supra), relied upon by counsel for the appellant is concerned, that cannot be made applicable to the facts of the present case as in said case the deceased was a student of B.B.A. and was pursuing his studies in U.K. So, in those circumstances, his monthly income was assessed as Rs.18,000/-. The income of the deceased has rightly been taken as Rs.10,000/- per month. By taking the dependency of the claimants as Rs.5,000/- per month, the yearly dependency has rightly been calculated as Rs.60,000/- (5,000 X 12). By applying the multiplier of 14, the amount of compensation comes to Rs.8,40,000/-. The Tribunal has allowed an amount of Rs.20,000/- in respect of medical expenses and Rs.5,000/- was allowed on account of last rites. Another sum of Rs.10,000/- stands allowed on account of transportation charges and attendant's charges during the period of hospitalization. So, in this manner, the claimants are held entitled to claim Rs.8,75,000/- as compensation alongwith interest as awarded by the Tribunal. In view of the above, both the appeals stand disposed of accordingly. ( K.C. Puri ) 24.5.2010 Judge chugh