FAO NO. 4436 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 4436 of 2009 Date of order: 08.11.2011 Smt. Premwati and others ..... Appellants Versus Rohtas and others .... Respondents -- CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Kunal Dawar, Advocate for the appellants. Ms. Puneeta Sethi, Advocate for the insurance company. **** Vijender Singh Malik, J. This is an appeal brought by the claimants for enhancement of compensation. It may be mentioned here itself that claim petition was brought by Smt. Premwati, mother of the deceased as well as three other claimants, who claimed themselves to be dependents of the deceased. Their claim was not found established to compensation on the death of Hoti Ram, who met with the fatal accident on 21.12.2003. The case brought by the petitioners under the provisions of section 166 of Motor Vehicles Act, 1988 (for short 'the Act'), which culminated in the award dated 21.04.2009 with learned Motor Accidents Claims Tribunal, Faridabad (for short 'Tribunal), is as under:- FAO NO. 4436 of 2009 2 Hoti Ram, deceased had been 24 years old, a lecturer at Y.M.C.A. Institute of Engineering, Faridabad. He was getting salary of Rs.12,725/- per month. On 21.12.2003 he alongwith his friends Shalender Kumar and Narender was going from Palwal on motorcycle bearing registration no.HR-30C/3223. When they were near temple of village Raipur, a dumper bearing registration no.HR 55-A/7566 had hit them at their back side, which led to receipt of injuries by Hoti Ram and his eventual death. The claim is resisted by respondents no.1 and 2 denying the accident to have taken place with the dumper in question. They have also denied the other particulars of the deceased. Respondent no.3, the insurance company has also denied the accident to have occurred in the manner alleged by the claimants. It is also averred that respondent no.1 was not holding a valid and effective licence at the time of accident and so the insured has violated the terms and conditions of the insurance policy. The claim petition is said to have been brought with malafide intention of extracting compensation from the insurer. Denying its liability to pay compensation, the petition is prayed to be dismissed. On the pleadings of the parties, the following issues were framed by learned Tribunal on 01.08.2006:- “1- Whether accident causing death of Hoti Ram occurred due to rash and negligent driving of Dumper bearing No.HR 55-A/7566 by respondent no.1?OPP 2- What amount of compensation the claimant is entitled to and from whom?OPP FAO NO. 4436 of 2009 3 3- Whether respondent no.1 was not holding a valid or effective driving licence ?OPR3 4- Whether respondents no.1 and 2 have violated the terms of the policy ?OPR3 5- Relief” Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal has made the impugned award. Feeling dis-satisfied with the awarded amount, the claimants have brought this appeal for enhancement of compensation. I have heard Shri Kunal Dawar, learned counsel for the appellants and Ms. Puneeta Sethi, learned counsel for the insurance company and have gone through the record. Learned counsel for the appellants has submitted that he did not press the appeal filed by appellants no. 2 to 4, whose claim to compensation was not found established by the Tribunal. The appeal on behalf of claimants no.2 to 4, who are not the children of the deceased and are children of his pre-deceased brother and his friend or keep, known by whatever name, is dismissed. Learned counsel for Smt. Premwati, appellant, has questioned the award on three points. According to him, the dependency of appellant Smt. Premwati has been assessed by the Tribunal at 1/3rd of the salary of the deceased . According to him, as per the decision of Honble Supreme Court of India in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77, the dependency cannot be less than ½ of the income of the deceased, even if the deceased was of marriageable age and could be expected to have married in near future and FAO NO. 4436 of 2009 4 raised his own family. The next point urged before me is that though the appellant has been of the age of 65 years, the multiplier suitable for assessing compensation is of 7 as per Smt. Sarla Verma and others' case (supra) while the Tribunal has adopted the multiplier of 5 and he has lastly submitted that 50% addition is required to the income of the deceased towards future prospects as per Smt. Sarla Verma and others' case (supra). He has submitted that the deceased had been a permanent employee , whose salary slip had been produced as Ex.P5 and Ashok Kumar , Accounts Assistant, YMCA, Faridabad had been examined as PW-5 Learned counsel for respondent no.3 has submitted that the deceased had strained relations with the appellant and for that reason, her dependency could not be taken above 1/3rd of the income of the deceased. According to her, no evidence is there on the record to prove that the deceased was a permanent employee. According to her, in these circumstances, the award made by the Tribunal is adequate. The evidence appearing in the statement of Ashok Kumar, PW-5 and the salary slip Ex.P-5 show that contributory provident fund was being deducted from his salary. A person who is admitted to, provident fund would be taken as a permanent employee. CPF accounts are not opened in case of Adhoc or temporary employees. Therefore, it can be believed that Hoti Ram was a permanent employee. His salary as per certificate Ex.P-5 has been Rs.12,725/- . He has been of the age of 24 years. FAO NO. 4436 of 2009 5 Following the law laid down in Smt. Sarla Verma and others' case (supra), addition of 50% of actual salary has to be made to the income of the deceased towards future prospects, if the deceased had been of the age below 40 years and was having a permanent job. Both the requisites for making this addition are available in this case. Therefore, making an addition of 50% to the income of the deceased for the purpose of assessing compensation his salary comes to Rs.19,087/-. As the claimant is the mother of the deceased, her dependency would be assessed at ½ of this amount. The strained relations would not come in the way because despite that she was entitled to maintenance from her son. The annual dependency of the appellant, thus calculated comes to Rs.1,14,522/-. Multiplying it with 7, the multiplier suitable in this case, the claimant is found to be entitled to Rs.8,01,654/- on the death of the deceased . Adding to it, a sum of Rs.10,000/- allowed in Smt. Sarla Verma and others' case (supra) as compensation for loss of estate and funeral expenses. I award a sum of Rs.8,11,654/-, rounded of to Rs.8,12,000/-. For the aforesaid reasons, the appeal succeeds and is allowed , enhancing the compensation from Rs.2,61,000/- to Rs.8,12,000/- which shall be payable to the claimant in the manner and with interest as ordered by the Tribunal. (VIJENDER SINGH MALIK) 08 .11.2011 JUDGE dinesh