IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 464 of 2005 Reserved No. 17th March, 2010 Date of Decision: 23rd March, 2010 Smt. Lambo Devi and others Appellants Versus Smt. Veena Thakur and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.B.K.Malhotra, Advocate. For the respondents: Mr.J.S.Bagga, Advocate, for respondent No.2. Sanjay Karol, J. (Oral) In this appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), impugned award dated 1.8.2005 passed by the Motor Accident Claims Tribunal, Mandi, H.P. in Claim petition No. 53 of 2002, has been assailed by the claimants. Only the claimants are aggrieved by the impugned award, hence facts necessary for adjudication of the appeal are being recorded. Shri Beli Ram died in a motor vehicular accident which took place on 18.3.2002 at Bhiuli bridge on Mandi - Kullu road. The accident occurred Whether the reporters of Local Papers are allowed to see the Judgment? 2 due to the negligence of Shri Ghanshyam the driver of the Bus bearing No. HP-31-7202. The vehicle was owned by Smt. Veena Thakur and insured with M/s Oriental Insurance Company (hereinafter referred to as the Insurer). The claimants being the dependants -legal representatives filed a petition under Section 166 of the Act claiming compensation of a sum of Rs.10 lacs. The petition was opposed by all the respondents by filing different replies. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the deceased died as a result of rash or negligent driving of respondent No.3? OPP. 2. In case Issue No.1 is proved, to what amount the petitioners are entitled and from which of the respondent? OPP. 3. Whether respondent No.3 was not having a valid and effective driving licence as alleged? If so, its effect? OPR-3. 4. Whether there was breach of the terms and conditions of the insurance policy, as alleged? If so, its effect? OPR-3 5. Relief. On the material on record, the Tribunal found that Shri Beli Ram had died in a motor vehicular accident which occurred due to the rash and negligent driving of the vehicle in question, on the part of Shri Ghanshyam. The driver was held to be possessed with a valid and effective driving licence at the time 3 of accident and the Insurer could not prove that any of the material terms and conditions of the insurance policy stood breached by the owner. The Tribunal, while adjudicating Issue No.2, based on the testimony of Ms. Laxmi Devi (PW-1), Shri Suresh Kumar (PW-2), Shri Bodhraj (PW-3), Shri Chetan Gupta (PW-4), came to the conclusion that the claimants could not prove the actual income of the deceased. However, by taking the notional income of the deceased to be Rs.4000/- (per month) and after deducting 1/3rd of the said amount as personal expenditure, Rs.2500/- per month was determined as income for the purposes of dependency. Taking into account the age of the claimants, multiplier of 12 was applied and a sum of Rs.3,60,000/- was determined towards loss of income. A sum of Rs.10,000/- was also awarded towards conventional charges. Thus in all a sum of Rs.3,70,000/- alongwith interest @ 9 % per annum from the date of petition was awarded in favour of the claimants. It has come on record that on the date of death of Shri Beli Ram, claimants No.2 and 3 were unmarried and undertaking their studies. According to Smt. Laxmi Devi (PW-1) her father was working as a Supervisor and foreman with Shri Suresh Kumar (PW-2) and drawing a salary of Rs.8500/- per month. He was also working with M/s Chandra Furnishers and earning a sum of Rs.5000/- per month therefrom. PW-2 has proved 4 the salary certificate Ext.PA to the said effect. Shri Bodhraj (PW-3) on behalf of M/s Chandra Furnishers has also proved certificate Ext.PB showing the monthly income of the deceased to be Rs.4000/- per month. However, the version of PW-3 does not inspire confidence for the simple reason that according to PW- 1, deceased used to work with M/s Chandra furnishers “only some times” and was under the regular employment of PW-2. His working hours were between 9 a.m. upto 5/5.30 p.m. An endeavour was made by the respondents to show that in the absence of corroborative material, certificates could not be taken into account for determining the income of the deceased. The fact, however, remains that the deceased had no other source of income. He was maintaining his family and bearing expenses for the education of his children. His elder daughter is post-graduate and younger daughter is graduate. They could not continue with their education any further. The telephone bills Ext.PW-7/A and statement of accounts of saving bank account (Ext.PA) of the deceased have been placed on record. Thus the deceased was definitely having income more than Rs.4000/- as stands determined by the Tribunal. The deceased was working as a foreman (skilled worker) and also as a Supervisor. The accident took place in the year 2002. Taking into account the totality of circumstances, in my considered view the income of the deceased can be 5 taken to be Rs.6000/-. This is being done by taking into account all the attending circumstances. Hence, income of the deceased is determined to be Rs.6000-00 per month. By deducting 1/3rd from the same towards the expenses which the deceased would have incurred for himself, a sum of Rs.4000/- is taken as monthly income of the deceased for the purposes of determining the dependency of the claimants. The multiplier has been correctly applied by the Tribunal. Hence, the compensation towards loss of income is determined to be Rs.4000 x 12 x 12 = Rs.5,76,000/-. The amount determined towards the conventional charges also needs to be enhanced. It is too meager. The young girls lost their father and had to give up their higher education. They had to be married and there was no other income to the family. Hence the amount of Rs.10,000/- is enhanced to Rs.25,000/-. Thus, the claimants are held to entitled to Rs.5,76,000 + Rs.25,000 = 6,01,000/-. They shall also be entitled to interest as awarded by the Tribunal. The appeal is allowed. The impugned award is modified to the aforesaid extent. 23rd March, 2010 (Sanjay Karol) (C) Judge. 6