IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- F.A.O. No. 942 of 1988 Date of decision: Kuldeep Kaur and others --- Appellants Versus State of Haryana through Collector, Kurukshetra and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. L.M. Suri, Senior Advocate with Ms. Karnica Bhurjee, Advocate for the appellants. Ms. Shalini Atri, Assistant Advocate General, Haryana for respondent Nos. 1 and 2. --- AJAY KUMAR MITTAL, J. This is claimants’ appeal with a prayer for enhancement of the compensation. By the award under appeal, i.e. dated 1.6.1988, two claim petitions came to be disposed by the Motor Accident Claims Tribunal, Kurukshetra (for short “the Tribunal”). One petition, out of which the present appeal has arisen, was filed by the widow and two minor children of deceased-Daljit Singh and another by his parents. This is a case of claiming compensation for the death of Daljit Singh, a 34 years old poultry farmer, who lost his life in the accident which occurred on 2.5.1987, when he was going along with his brother Amrik Singh, on a scooter from village Niwarsi to Pehowa. The offending bus bearing registration No. HYT 9712 came from the opposite side which, as per the finding returned by the Tribunal, was being driven F.A.O. No. 942 of 1988 rashly and negligently by its driver-Kartar Singh (respondent No.3). The bus came on the wrong side of the road and knocked down the scooter driven by Daljit Singh and in the accident, Daljit Singh died. The claimants, i.e. the widow and two minor daughters of the deceased, filed the claim petition seeking compensation to the tune of Rs. 6,40,000/-. The defendant in their separate written statements did not deny the accident having taken place. It was, however, stated that Daljit Singh alone was on the scooter and he was driving the same in a rash and negligent manner. On seeing the scooter coming at the fast speed, the bus driver brought the bus to halt on the extreme left side of the road but the scooter driven by Daljit Singh dashed against the bus. The Tribunal framed the following issues:- 1- Whether the death of Daljit Singh took place due to rashness and negligence on the part of Kartar Singh driver of Haryana Roadways bus No. HYT 9712? OPP 2- In case issue No.1 is proved, to what amount of compensation are the claimants entitled to? OPP 3- Whether the claim petition is not maintainable? OPR 4- Relief. The Tribunal, on appreciation of the oral and the documentary evidence on record, returned a finding that the death of Daljit Singh was caused due to the rashness and negligence on the part of the bus driver. As regards issue No. 3. the same was not seriously pressed before the Tribunal and consequently, was decided against the respondents. Pa ge nu F.A.O. No. 942 of 1988 So far as the quantum of compensation and liability of payment thereof is concerned, the Tribunal awarded a compensation to the tune of Rs. 1,53,600/- vide impugned award dated 1.6.1988, with costs and interest at the rate of 12% per annum on the said amount from 14.9.1987, the date on which the claim petition was filed, till the date of deposit of the amount. Respondent Nos. 1 to 3 were held liable to pay the amount of compensation jointly and severally. Out of the aforesaid amount, a sum of Rs. 25,000/- was ordered to be paid to the mother of the deceased who was one of the claimants in the connected claim petition, whereas the remaining amount was ordered to be shared equally by Kuldeep Kaur, the widow, and the two daughters of the deceased. The share of the minor children was directed to be deposited in some nationalized bank. Dissatisfied with the amount of compensation awarded by the Tribunal, the widow and two minor daughters have filed the present appeal for enhancement of the same. I have heard learned counsel for the parties and have gone through the record with their assistance. Learned counsel appearing for the appellants submitted that the compensation awarded by the Tribunal is not adequate and it is fit case for enhancement of the amount of compensation. To fortify his submission, the counsel submitted that on the basis of the evidence led by the appellants, the Tribunal ought to have held the dependency of the claimants on the deceased at Rs. 5500/- per month, as it stood clearly proved on record that the appellant was running a Poultry Farm which had more than 6000 birds and was earning over Rs. 6000/- per month from that business. The counsel submitted that it is this amount which Pa ge nu F.A.O. No. 942 of 1988 the family of the deceased was deprived of on the death of Daljit Singh, except the amount that the deceased might have been spending on himself. The counsel submitted that notwithstanding the aforesaid facts, the Tribunal espoused its own theory on the basis of which a very meagre amount came to be assessed as dependency. Learned counsel appearing for the State of Haryana, however, stoutly opposed the contention of the learned counsel for the appellants and supported the award passed by the Tribunal. To appreciate the contention of the learned counsel in its right perception, it deserves to be noticed first as to how and in what manner the Tribunal came to assess the dependency on the deceased at Rs. 800/- per month. Further, in order to understand the yardstick invented by the Tribunal for the said purpose, it is felt necessary to notice in verbatim the observations made in para 18 of the award, which read thus: “From the perusal of the above evidence, I am definite that an effort has been made to maximize the income of Daljit Singh, so as to claim the highest possible compensation. The claim put forth by the claimants is certainly exaggerated and is mis-placed. Even if, it be presumed that the deceased was earning Rs. 6000/- per month by running a poultry farm, the amount of compensation cannot be assessed on the basis of the said income. The aforesaid income was being derived by the deceased by working in the poultry farm. With his death the poultry farm is not wiped off and it very much is there. All that the claimants have suffered an intelligent mind and safe hands of Daljit Singh. The poultry farm now cannot be Pa ge nu F.A.O. No. 942 of 1988 managed by Daljit Singh. To make up that loss, the claimants can easily avail of the services of an efficient person to run the poultry farm. This is despite the fact that the deceased Daljit Singh is survived by his father who is a retired pensioner and he has other sons who are young and looking for employment. However, there appears to be estrangement between the parents and brothers of Daljit Singh on the one side and Kuldip Kaur widow on the other side. There is not much possibility on the part of the father and brothers of the deceased to work at the poultry farm. The widow has to avail of the services of some body else to run the poultry farm. Looking to the nature of the job involved and the necessary training a person with requisite qualifications can be employed by the claimants against the payment of Rs. 1200/- per month as salary. With the death of Daljit Singh, the claimants are not to incur any expenses for his maintenance. On that account, a deduction of 1/3rd of Rs. 1200/- is necessary to work out the amount of dependency. It thus, comes to Rs. 800/- per month and the annual figure is assessed at Rs. 9600/-.” This is how, as is clear from the above, the Tribunal came to assess the dependency at Rs. 800/- only. It is crystal clear that the Tribunal totally ignored an extremely important aspect emerging in the case that question for determination was to assess the dependency of the persons left by the deceased Daljit Singh and not of a skilled or efficient worker employed in the poultry farm being run by the deceased. If it had been a case of the latter aspect, the Tribunal may have been Pa ge nu F.A.O. No. 942 of 1988 justified that the deprivation of a skilled or a worker competent to look after the affairs of the poultry farm has put the owner of a poultry farm to a particular amount of loss. The Tribunal totally side-tracked the real question and the approach adopted by it in the context is based on superfluous assumptions. The Tribunal, instead of finding the loss caused to the claimants rather proceeded to calculate the loss to the business of the deceased. This approach was misconceived and cannot be said to be justified. Coming to the real question now, i.e. the determination of the compensation payable to the claimants, it would be necessary to revert to the conventional mode, viz. to find out the income of the deceased which he had been earning immediately prior to the accident, and his contribution to the claimants. So far as the income part is concerned, it had come in evidence in the shape of statements of Kuldip Kaur AW-1, widow of the deceased that the deceased was earning a sum of Rs. 8000/- per month and he was maintaining 6000 birds in the poultry farm. As per the statement of AW-2 Amar Lal Talwar, Retired Deputy Director Animal Husbandry, who had an experience of 36 years on the subject, testified that a bird of good breed, if properly maintained, can bring on an average income of Re. one per month, for a period of 18 months. However, no documentary evidence has been produced to support that the deceased was having 6000 birds in his poultry farm. In the absence of the same, a question would, thus, arise as to whether it could be held that the deceased was earning the amount of Rs. 6000/- per month as claimed and further that he would have continued to earn the same income in future also. The answer, of course, would be in the negative. By the very nature of the business, the income of the Pa ge nu F.A.O. No. 942 of 1988 deceased was bound to vary from time to time as in the business, like the maintenance of poultry farm, several kinds of uncertainties prevail. The income may rise and may be stable. It may decrease as well due to various unavoidable reasons, like diseases with which the birds generally suffer or the natural calamities etc. In a case of this nature, some guesswork is inevitable. Thus, having regard to the above facts and circumstances and keeping in view the flexible nature of the income of the deceased, it would be just and fair to hold that the deceased must have been earning at least a sum of Rs. 2000/- per month at the time of his death. Now comes up the question of calculation of the compensation. The Tribunal, after appreciation of the evidence available on record, held the income of the deceased-Daljit Singh as Rs. 1200/- per month and deducting 1/3rd there from on account of deceased’s personal expenses, assessed the dependency of the claimants on him at Rs. 800/- per month. Applying the multiplier of 16, awarded compensation in the sum of Rs. 1,53,000/-. Since the income of the deceased has been held to be Rs. 2000/- per month, it is presumed that the deceased would have been spending a sum of Rs. 700/- per month on himself and thus must have been contributing the remaining amount of Rs. 1300/- per month to the claimants. Calculating the compensation having regard to the dependency at Rs. 1300/- per month or Rs. 15600/- per year, and applying the same multiplier of 16 as was done by the Tribunal, the amount would come to Rs. 2,49,600/-. The Tribunal has not awarded any amount on account of consortium and funeral expenses. Having regard to the facts and circumstances of the case, a sum of Rs. 10,000/- is awarded further on account of consortium and loss of estate. Pa ge nu F.A.O. No. 942 of 1988 Besides, the appellants would also be paid another sum of Rs. 5,000/- on account of funeral expenses etc. The total compensation would thereby come to be Rs. 2,64,600/-. The appellants would, therefore, be entitled to a sum of Rs. 1,11,000/- over and above the compensation awarded by the Tribunal. The appellants shall also be entitled to interest at the rate of 9% per annum on the amount enhanced under this order from the date of award till the date of payment of the full amount of compensation. The enhanced amount of compensation and the interest accrued thereon shall be apportioned in the same manner as ordered by the Tribunal in its award dated 1.6.1988. Accordingly, the appeal is partly allowed and the impugned award stands modified in the manner indicated above. No costs. (AJAY KUMAR MITTAL) May , 2008 JUDGE *RKMALIK* Pa ge nu