IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.312/2004 Reserved on: 17th March, 2008 Date of Decision :11th April, 2008. Sh. Kewal. …Appellant. Versus: Tilak Raj and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.K.D.Batish, Advocate. . For Respondents. Mr.Ajay Sharma, Advocate. Sanjay Karol, J. In the present appeal, award dated 17th June, 2004 passed by Motor Accident claims Tribunal-II, Kangra at Dharamshala in M.A.C.Petition No71-K/2000 titled as Tilak Raj and others Vs. Kawal and another has been assailed. Smt. Phulan Devi died on 12th March, 2003 as a result of an accident of vehicle No. HP-04-0419 which took place on 11th March, 2000 near Kangra, H.P. Her son and five daughters filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the “Act”) claiming a sum of Rs. 4,50,000/- as compensation. On the pleadings of the parties the Court framed the following issues:. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 1. Whether the deceased had died due to rash and negligent driving of the vehicle i.e. three wheeler by respondent No.1 ?. …OPP. 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? …OPP. 3. Whether the petition is not maintainable?. ..OPR. 4. Relief. Based on the evidence, the Tribunal decided issue No.1 in favour of the plaintiff holding that respondent No.1, as owner was driving the vehicle in a rash and negligent manner and the deceased sustained injuries in the accident and died as a result thereof. The age of the deceased was determined to be 55 years. She was found to be a house wife and as such her contribution to the family, as service was quantified to be Rs.1,000/- per month. Keeping in view the dependency of claimant No.1-Tilak Raj and other circumstances, the court below applied the multiplier of 9 to determine the compensation payable to the claimants. Accordingly, relying upon the judgment rendered by the apex Court in State of Haryana and others Vs. Jasbir Kaur and others, A.I.R.2003 S.C. 3696, the claimants were awarded compensation as under: “Loss of services rendered by the deceased: Rs.1,08,000/- Compensation on account of love, affection And consortium. 2,000 x 6 Rs. 12,000/- Conventional Charges. Rs. 2,000/- ___________ Rs.1,22,000/- ___________ 3 The liability determined was that of the owner as the driver of the vehicle. The Insurance Company was originally arrayed as party but was subsequently deleted. The owner has preferred the present appeal challenging the impugned award. The learned counsel for the appellant has made the following submissions: (i) Without impleading Sh. Ram Rattan, husband of deceased Fulan Devi, the petition under Section 166 of the Act was not maintainable and thus liable to be rejected. (ii) In the absence of any proof of dependency no compensation under Section 166 of the Act could have been awarded. The claimants were not residing with their mother. (iii) A house wife doing the household work, by no stretch of imagination can be construed to be a service rendered by the deceased. However, challenge to the findings of fact as to whether the vehicle was being driven by the appellant in a rash and negligent manner was not pressed. In support of his contention he has referred to and relied upon various decisions rendered by the Courts in Damyanti Dhavan and another Vs. New India Assurance Company, AIR 1996 H.P. 106, Manjuri Bera Vs. Oriental Insurance Co. Ltd. and another, 2007 ACJ 1279, Gubbala Subhadra Vs. S.Appa Rao and others, 1988 ACJ 862, Kaushalya Devi and another Vs. Mohan Lal and others, 1985 ACJ 514, Ranganathan Vs. K.Gangabai and others, 1982 A.C.J.341, Gurdial Kaur and others Vs. Atma Singh and others, 1987 ACJ 245, State of Orissa Vs. Archana Nayak and others, 1987 ACJ .772, Bijoy Kumar 4 Dugar vs. Bidya Dhar Dutta and others (2006) 3 Supreme Court Cases 242, General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas (Mrs) and others (1994) 2 Supreme Court Cases 176, Smt. Manjuri Bera Vs. Oriental Insurance Co. Ltd. AIR 2007 Supreme Court 1474, Mrs. Bafizun Begum Vs. Md. Ikram Heque and Ors, AIR 2007 Supreme Court 2680 and Smt. Kaushalya Devi and another Vs. Mohan Lal and others, AIR 1984 Punjab and Haryana 415. In response learned counsel for the claimants has argued that the petition on behalf of the legal heirs of the deceased is absolutely maintainable and non impleadment of the husband would not render the petition to be fatal. According to him, dependency is not a factor to be considered while determining the compensation. Further the plea of non dependency and non maintainability of the petition, even though taken in the written statement would be deemed to have been abandoned for the reason that the respondents did not press the same which is evident from the fact that no issue was got framed and, therefore, keeping in view the decision rendered by the Courts in Smt. Minati Senalias Smt. D.P.Sen Vs. Kalipada Ganguly and others, AIR 1997 Calcutta 386, Smt. Vaidya Wati (deceased) through her L.Rs. Vs. Hans Raj (deceased) through his L.Rs. AIR 1993 Delhi 187, Papanna Vs. Madappa and others, AIR 1993 Karnataka 24 and Piara Singh Vs. Punjab State and others, 1998 ACJ 493, it cannot be said that the Tribunal has committed an error while deciding the claim petition filed by the claimants. 5 Before adverting to the legal issues raised in the present appeal, it is important to notice the facts as they have emerged from the record. The claimants have pleaded that the deceased was a house wife and an agriculturist having an income of Rs.1200/- per month and the claimants are the legal heirs. Importantly, it is no where stated in the petition that the claimants were dependent upon the deceased. In the written statement filed by Oriental Insurance Company, it was specifically pleaded that at the time of the accident the driver was neither having a valid driving license nor was the vehicle insured. In a separate written statement filed by the owner (appellant herein) a preliminary objection, with regard to the maintainability of the petition and the claimants not being dependent on the deceased was specifically taken. Importantly in the replication this fact has not been denied at all. The claimants examined Shri Tilak Raj (PW-1), Kashmir Singh (PW-2) and Shri Kuldip Singh (PW-3) as their witnesses and respondent No.1 examined Kewal Krishan as RW-1. With regard to the income of deceased, PW-1 only deposed that she used do the work of agriculture in the house of other persons and was having income of Rs.1200/- per month. He also admitted that even he was employed in a shop and earning an income of Rs.1200/- per month. Importantly he has not deposed that he was dependant upon his mother or that she was in any manner contributing in the house hold. In fact, this witness has denied the suggestion that his mother was only a house wife and not working elsewhere. 6 The sworn testimonies of PW-2 and PW-3 are more to prove the act of negligence on the part of the appellant. Since this ground is not pressed I am not going into the same. But, however,on the issue of income of the deceased PW-2 has been vacillating which is evident from the deposition. Firstly he deposed that the deceased worked as a labourer and earned Rs.1000/- to Rs.1200/- per month but subsequently he admitted that the deceased was a house wife. There is no other oral or documentary evidence to prove the fact that the deceased was either employed or was having an income of Rs.1000/- as determined by the court below. Therefore, it cannot be said that the deceased was having any income. In Manjuri Bera Vs. Oriental Insurance Co. Ltd. and another, 2007 ACJ 1279, the apex Court has held that the right to apply for compensation is distinct and different from the entitlement to compensation. Married woman living in their husband’s house would not be construed as dependant and were entitled to compensation only on the basis of no fault liability. In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas (Mrs) and others, (1994) 2 Supreme Court Cases 176, the apex Court has held as under: “For assessment of damages to compensate the dependants, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances 7 that the deceased might have got better employment or income or might have lost his employment or income altogether. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier” In Bijoy Kumar Dugar Vs. Bidya Dhar Dutta and others, (2006) 3 Supreme Court Cases 242, the Court held : “ The compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a “multiplier”. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution 8 towards the expenses of the family naturally is in proportion to one’s earning capacity”. Section 168 of the Act requires determination of a just compensation. In State of Haryana (supra) it is held : “What would be “just” compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the back-ground of “just” compensation which is the pivotal consideration. Though by use of the expression “which appears to it to be just” a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello V. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191).” In Padma Devi and another Vs. U.P. State Road trans. Corpn. And others, 1988 ACJ 667, the Court held that the married daughters would not be entitled for the loss of consortium due to the death of their mother. The judgment reported in Gubbala Subhadra Vs. S.Appa Rao and others, 1988 ACJ 862 rendered by the Single 9 Judge of the High Court of Andhra Pradesh it was held that the petition without impleading all of the legal heirs would be fatal. The legislative intent behind the said provision is obviously to avoid multifarious claims in respect of the same accident. It is also to protect and ensure that the compensation is equally apportioned by all of the legal heirs. However, in Kaushalya Devi and another Vs. Mohan Lal and others, 1985 ACJ 514, the decision rendered by the Single Judge of the High Court of Punjab and Haryana in somewhat similar circumstances remanded the matter back for impleading the left out legal heirs and adjudication in accordance with law. The ratio of law laid down in Mrs.Hafizun Begum Vs. Md. Ikram Heque & Ors, AIR 2007 Supreme Court 2680 is also to the same effect. As per the version of PW-1 his married sisters’ claimants No. 2 to 6 are settled at a different places. Even PW-1 has not deposed that he was residing with his mother and was dependant upon her. Therefore, it cannot be said that the claimants were dependant upon the deceased in any manner. The pleadings and the evidence is totally silent about the same. It is not the case of the claimants that they were having their own agriculture land where their mother was working and contributing her services and thus after her death there is deprivation of agriculture income to the family. In this background the Tribunal has erroneously applied and interpreted the ratio of law laid down by the apex court in 10 State of Haryana Vs. Jasbir Kaur (supra). In the said background I am not going into submission No.(iii) made by the learned counsel for the appellant. Thus applying the ratio of law to the instant facts none of the legal heirs, not being dependant upon the deceased, were entitled for any compensation under Section 166 of the Act. The claimants did not dispute the fact that they were not dependant therefore the parties were not in issue. The contention of the learned counsel for the respondents therefore requires to be rejected. The judgments referred to by him are not applicable to the facts and circumstances of the case The order determining the compensation, thus, needs to be reversed and accordingly it is held that the claimants would not be entitled to any amount of compensation as determined by the Court below. The claimants, however, would be entitled to compensation on the basis of no fault liability and as such are awarded a sum of Rs.50,000/-. This amount has to be equally apportioned by all the legal heirs of the deceased (including the left out legal heirs) entitled for compensation in accordance with the provision of the Act. It is undisputed fact that the husband of the deceased was not arrayed as a party in the claim petition. From careful reading of the proviso to Section 166 it is 11 evident that the Court below ought not to have proceeded with the claim petition without impleading all of the legal heirs as party. He was enjoyed with a duty to do so. Be that as it may be the Act being a beneficial legislation the rights of the claimants cannot be defeated for this reason alone. Keeping in view the peculiar facts and circumstances and also in the interest of justice rather than dismissing the petition on this ground I have awarded compensation as aforesaid. Therefore, I am of the view that the interest of justice would be met if the matter is remanded back to the Court below for impleadment of the remaining legal heirs and adjudication of their claims in accordance with law. It shall be open for the newly impleaded legal heirs to prove their claims in accordance with law. The dependency of the respondents herein stands finally adjudicated in the present appeal. For the aforesaid reasons, the appeal is partly allowed. The matter is remanded back to the tribunal on a limited point for adjudication in accordance with law. The record be sent back immediately. The remaining legal heir, if alive, shall take all such steps for impleadment as may be necessary in accordance with law. Their claims shall be adjudicated uninfluenced by the observation made herein, after affording due opportunities In the interest of justice the awarded amount shall not be disbursed to the present appellant till such time they furnish the list of left out legal heirs and also inform the left out legal heirs of this judgment 12 and file an affidavit to the said effect in the claim petition. The amount deposited by the appellant herein along with interest is directed to be remitted back to the trial Court and the same be disbursed in accordance with observation made herein above. The appeal is accordingly disposed of. (Sanjay Karol), Judge. April 11, 2008(R)