F.A.O. No. 2371 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 2371 of 2009 (O&M) Date of Decision: September 28th,2011 Smt. Santosh and others .... Appellants Versus Hoshiar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. B.S.Walia, Advocate, for the appellants. Mr. Kunal Garg, AAG, Haryana, for respondents No. 1 to 3. Mr. K.B.Jain, Advocate, for respondent No. 4-Insurance Company. VIJENDER SINGH MALIK, J. Delay of 2 days in filing the appeal is condoned being marginal. This is an appeal brought by the claimants, the dependents of Sanjeev Kumar, for enhancement of compensation awarded to them by the Motor Accidents Claims Tribunal, Karnal (for short, "the Tribunal") vide award dated 15.9.2008 in a sum of ` 9,10,000/- for the death of Sanjeev Kumar in a road side accident that took place on 19.6.2007. The case of the claimants is as under: F.A.O. No. 2371 of 2009 2 On 19.6.2007, at about 5.45 PM, Sanjeev Kumar (deceased) was coming to his house on his motor cycle bearing registration No. HR-05-S-4198 after dealing with his customers. He was driving his motor cycle at a moderate speed and on his left side of the road. He was observing all the traffic rules. When he was opposite water supply pump near the gate of S.D.Modern School, Karnal, a bus of Haryana Roadways bearing registration No.HR-56-1932 came from his back side. The bus was being driven at a very high speed and in a rash and negligent manner. The driver of the bus had hit the motor cycle of Sanjeev Kumar at its back. Thereafter, Sanjeev Kumar fell down and one of the wheels of the offending bus crossed over his body. It was even dragged to some distance. Sanjeev Kumar died at the spot on account of the injuries. A case with FIR No. 349 dated 19.6.2007 under sections 279 and 304-A IPC was registered on the statement of Vijay Kumar. The deceased was running a hardware shop and was earning ` 10,000/- per month. He was a young man of age of 37 years. A sum of ` 20.00 lakhs is, consequently, claimed as compensation. The respondents resisted the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”). The driver has taken a number of preliminary objections in his written statement. He has denied the accident to have occurred in the manner alleged by the claimants. The FIR is claimed to be false, lodged with the police in connivance with the police officials. The deceased is himself claimed to be rash F.A.O. No. 2371 of 2009 3 and negligent in driving his motor cycle. Respondents No. 2 and 3 have also taken same stand. They have added that the bus was insured with the ICICI Lombard General Insurance Company limited, respondent No.4 Respondent No. 4 has denied its liability to pay compensation in this case. It is claimed that the vehicle was being driven by a person not holding a valid and effective driving licence. The deceased was denied to be 37 years old and earning `10,000/- per month by running a hardware shop. The case registered against respondent no.1 is stated to be false. On the pleadings of the parties, the following issues were framed by the Tribunal. 1.Whether the accident in question took place on 19.6.2007 due to rash and negligent driving of vehicle bearing No. HR-56-1932 by respondent No.1 Hoshiar Singh in which Sanjeev Kumar had died, as alleged? OPP 2.If issue no.1 is proved, whether the petitioners are entitled to any compensation, if so, how much and from whom? OPP 3.Whether the vehicle in question was being driven in violation of the terms and conditions of the insurance policy, if so, its effect? OPR 4.Relief. The parties led their respective evidence. After hearing learned counsel representing them, learned Tribunal accepted the claim petition vide the impugned award. Learned Tribunal has assessed a sum of Rs.9,00,000/- as compensation by F.A.O. No. 2371 of 2009 4 multiplying the dependency of ` 6,000/- with 15. He has added thereto a sum of ` 10,000/- for funeral expenses and transportation and ultimately awarded compensation in a sum of ` 9,10,000/- to the claimants. Dissatisfied with the award, the claimants have brought this appeal. I have heard Shri B.S.Walia,learned counsel for the appellants, Shri Kunal Garg, learned Assistant Advocate General, Haryana for respondents No. 1 to 3 and Shri K.B.Jain, learned counsel for respondent No.4 and have gone through the record. Learned counsel for the appellants has submitted that the age of the deceased has wrongly been taken as 40 years. According to him, it was 37 years and the multiplier selected in this case is, thus, incorrect. He has also submitted that the general rule about deduction of 1/3rd from the income towards personal expenses was not applicable to this case because number of claimants was high. He has further submitted that learned Tribunal has awarded ` 10,000/- for funeral and transportation and has not awarded even a single penny for loss of consortium, loss of estate etc. Without there being any documentary evidence, learned Tribunal took the income of the deceased at ` 7,500/- per month. This aspect could not be questioned by learned counsel for the appellants. No specific decision has been brought to my notice to show that the cut to be applied to this F.A.O. No. 2371 of 2009 5 income to assess the dependency of the claimants should have been any thing less than 1/3rd. The age of the deceased was though, stated to be 37 years, yet, the post mortem report revealed the age of the deceased as 40 years. Learned Tribunal has committed no error in taking the age of the deceased from the post mortem report, which was mentioned by a responsible medical officer. There was nothing on the record to show that the age of the deceased was less than 40 years as was entered in the post mortem report. In these circumstances, assessment of compensation at ` 9,00,000/- is free from any error. However, as laid down in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77 case, the claimants are entitled to a sum of ` 10,000/- for loss of consortium, ` 5,000/- for loss of estate and ` 5,000/- as funeral expenses. Therefore, the claimants were entitled to ` 9,20,000/- in stead of ` 9,10,000/-. Consequently, the appeal is allowed. The amount of compensation is enhanced from ` 9,10,000/- to ` 9,20,000/-. with the other terms regarding rate of interest etc. remaining the same. (VIJENDER SINGH MALIK) JUDGE September 28th , 2011 som