FAO No. 1154 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1154 of 1991 (O&M) Date of decision 3.3.2010. Sandeep ...... Appellant. versus Des Raj ...... Respondent. FAO No. 1155 of 1991 Sandeep ...... Appellant. versus Des Raj ...... Respondent. FAO No. 1156 of 1991 Sandeep ...... Appellant. versus Des Raj ...... Respondent. FAO No. 1157 of 1991 Sandeep ...... Appellant. versus FAO No. 1154 of 1991 2 Des Raj ...... Respondent. Present : Mr. Satinder Khanna, Advocate for the appellant(s) in all appeals. Mr. R.C.Gupta, Advocate for the Insurance Company in all appeals. K.C.PURI. J. By this common order, I intend to dispose of FAO No. 1154 of 1991 -Sandeep versus Des Raj , FAO No. 1155 of 1991 -Sandeep versus Des Raj, FAO No. 1156 of 1991 -Sandeep versus Des Raj and FAO No. 1157 of 1991 -Sandeep versus Des Raj , as these appeals arise from the same incident/Award. For convenience facts are being taken from FAO No.1154 of 1991. Appellants, in the above mentioned appeals, prayed for enhancement of the compensation amount granted to them vide impugned award dated 7.1.1991 passed by Shri M.C.Aggarwal, learned Motor Accident Claims Tribunal, Karnal. On 31.1.1989 at about 9.10 AM, near Petrol Pump, Samalkha, when Maruti Car No.PIL-6008 was hit by Truck No.HRG-5179, which (Truck) was being driven rashly and negligently by its driver Des Raj- respondent No.1. The said truck was owned by Teja Singh-respondent No.2 and was insured with New India Assurance Company Ltd.-respondent No.3 at that time; and in that Car, Ramesh Kumar Gupta (father of Sandeep Gupta-claimant), Mrs. Vijay Gupta-wife of Ramesh Kumar Gupta (mother of Sandeep Gupta-claimant), their son Neeraj Gupta and their daughter FAO No. 1154 of 1991 3 Princy (brother and sister of claimant Sandeep Gupta) were travelling ; and that car was being driven by aforesaid Ramesh Kumar Gupta and all the four occupants of the Car, namely Ramesh Kumar Gupta, his wife Mrs. Vijay Gupta, their son Neeraj Gupta and their daughter Princy Gupta died, as a result of that accident. The accident was witnessed by Rajinder Singh PW-1, who had lodged the FIR (copy Ex.P.1) in police station Samalkha. Claimant has claimed compensation to the tune of Rupees Five lacs each due to the death of his father, mother, brother and sister in the accident in question from the respondents jointly and severally in the aforesaid claim-petitions. His father Ramesh Kumar Gupta was 46 years of age, whereas, his mother Mrs. Vijay Gupta was about 40 years of age and his sister Miss. Princy was about 20 years of age and his brother Neeraj Gupta was aged about 18 years of age at that time; and all of them used to run M/s Spintex Woolen Mills, Ludhiana and used to earn Rs.15,000/- per month from the above business. Claimant Sandeep Gupta used to study at that time but after the death of his parents, his brother and sister in the accident in question, he had to abandon his studies and had to come to business, and for that purpose, he had to engage two more persons in the aforesaid business. His aforesaid brother and sister were unmarried. Claimant had filed the aforementioned four separate claim-petitions claiming compensation due to the death of his father, mother, brother and sister in the accident in question. Notices of the claim-petitions were issued to the respondents. Respondents No.1 and 2, in their joint written-statement and respondent No.3 in its separate written statement, filed in each of the above mentioned FAO No. 1154 of 1991 4 four cases controverted the above averments made in the claim-petitions and further took up the plea that the accident took place due to rash and negligent driving of the car by deceased Ramesh Kumar Gupta himself for which truck driver was not at all at fault and that the respondents are not at all liable to pay any amount of compensation to the claimant. No replication was filed on behalf of the claimant in any case. On the pleadings of the parties, the following issues were framed by this Court :- (1) Whether the accident in question took place due to the rash and negligent driving of Truck No.HRG-5179 by its driver Des Raj-respondent No.1, which truck was owned by respondent No.2 and was insured with respondent No.3, at the time of present accident? OPP. (2) Whether Neeraj Gupta (brother of Sandeep Gupta- claimant), Miss Princy (sister of Sandeep Gupta-claimant), Mrs. Vijay Gupta (mother of Sandeep Gupta-claimant) and Ramesh Kumar Gupta (father of Sandeep Gupta-claimant), sustained injuries in the accident in question and whether they succumbed to those injuries? OPP (3) Whether the present claimant is the legal heir/LR/dependent of the aforesaid deceased and whether he alone is the legal heir/LR/dependent of the deceased? OPP (3-A) Whether the claimant has got no locus standi to file and maintain the present claim-petition? OPR-3 (3-B) Whether the driver of the alleged Truck was not FAO No. 1154 of 1991 5 holding any valid driving licence at the time of accident, If so its affect ? OPR-3 (3-C) Whether Sandeep Gupta is the legal heir/LR/ dependent of his brother Neeraj Gupta (since deceased)? OPP. (4) What amount of compensation, if any, is the claimant entitled to receive on account of the death of aforesaid deceased in the accident in question, if so, how much and from whom? OPP (5) Relief. The parties had led their respective evidence on the aforesaid issues. The learned Tribunal after appraisal of the evidence, awarded compensation to the claimant(s) to the tune of Rs.1,15,000/- due to the death of Ramesh Kumar Gupta, Rs.55,000/ due to the death of his mother Smt.Vijay Gupta, Rs.15,000/- due to the death of his brother Neeraj Gupta and Rs.15,000/- due to the death of his sister Princy Gupta. The claimant was also held entitled to interest at the rate of 12% p.a. from the date of filing of the claim petition from the date of petition till payment. The respondents were also held liable jointly and severally to pay the aforesaid amount of compensation and interest to the claimant. Feeling dis-satisfied with the aforesaid award, the respondents- appellants preferred this appeal for enhancement of the compensation amount. I have heard the learned counsel for the parties and have gone thorough the records of the case. FAO No. 1154 of 1991 6 The appellant has filed application under Order 41 Rule 27 of the Code of Civil Procedure in short -CPC) for production of income tax returns. This appeal was filed on 23.4.1991 but the original of income tax returns sought to be produced by way of additional evidence has not been produced. Vide order dated 28.1.2010, it was brought to the notice of counsel for the appellant that original or copies of aforesaid returns have not been placed on the file. So, in the absence of any return sought to be produced by way of additional evidence, the application under Order 41 Rule 27 CPC cannot be accepted. Even today, no such return has been filed. So, in these circumstances, the application for additional evidence stands dismissed. In this case, Sandeep Gupta is the sole survivor of the family as all other family members had been wiped out in a motor vehicular accident, which includes his father, mother, brother and sister. All these above four appeals have been filed by him for enhancement of compensation. Now coming to the merits of the case. Each case is being taken up separately. FAO No.1154 of 1991 In this case, Ramesh Kumar Gupta, father of Sandeep Gupta has died in motor vehicular accident. The Tribunal has granted an amount of Rs.1,15,000/-. Ramesh Gupta deceased, as per the claimant, was 46 years of age and he was earning income of Rs.15,000/- per month. The Tribunal held that only photocopy Ex.P-11 in respect of annual income of Neeraj in the year 1988-99 has been produced, in which his income has been shown as Rs.13,500/- per annum. Ex.P-12 is the duplicate copy of Ex.P-11. Ex.P- 15 shows that income tax authorities had assessed the income of Miss FAO No. 1154 of 1991 7 Princy as Rs.15,500/- during the year 1988-89. However, no evidence regarding income of Ramesh Kumar has been produced. So, the income of Ramesh Kumar has been taken as Rs.900/- per month and after deducting 1/3rd amount spent on him, the monthly dependency has been taken as Rs.600/- and yearly dependency has been taken as Rs.7200/-. The multiplier applied by the Tribunal was 16 and in this manner Rs.1,15,200/- has been calculated by rounding it amount of Rs.1,15,000/- has been awarded. In this case accident has taken place in the year 1991. So, the income of deceased for that year has to be taken into account. The deceased was businessman and in these circumstances, his income cannot be taken as less than Rs.1500/- per month in the year 1991. However, the Tribunal has taken the income of Ramesh Kumar as that of Rs.900/-. The said approach of the Tribunal is not correct. So, in these circumstances after deducting the amount of 1/3rd for maintenance of deceased. The dependency of the claimant is calculated as Rs.1000/- per month. The yearly dependency is taken as Rs.12,000/-. The multiplier applicable at the age of deceased is 13 as per authority laid down by Hon'ble Supreme Court of India in Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77. So, the claimant is held entitled to claim Rs.1,56,000/- (Rs.12,000x13). Taking into account funeral expenses and transportation etc., the claimant is also held entitled to claim Rs.4,000/- more i.e. (Rs.1,56,000/-+Rs.4,000/- = Rs.1,60,000/-) on account of death of Ramesh Kumar. The claimant is also held entitled to claim interest @ 7% p.a. on enhanced amount from the date of appeal till payment. FAO No.1155 of 1991 FAO No. 1154 of 1991 8 The claimant has been held entitled to claim Rs.56,000/- on account of death of Mrs.Vijay Gupta, mother of the appellant. Vijay Gupta was aged 40 years and her income was taken as household lady amounting to Rs.56,000/- has been allowed relying upon authority Ram Chand & Others vs. Ram Kishan & Others, reported in IT (1990) I.C.C. Page 183, as discussed above, an amount of Rs.1,60,000/- has been granted in respect of death of father of the claimant. In my view, the ends of justice will be met in case an amount of Rs.80,000/- is granted in respect of death of the mother by taking her income as ½ as that of father of the claimant. The claimant is also held entitled to claim interest @ 7% p.a. on enhanced amount from the date of appeal till payment. FAO Nos.1156 and 1157 of 1991 The Tribunal has granted an amount of Rs.15,000/- each in respect of death of Neeraj Gupta brother and Princy Gupta sister of deceased holding that the appellant was not dependent upon the income of Neeraj Gupta brother and Princy Gupta sister. The amount of Rs.15,000/- has been awarded under no fault liability. However, that amount in each case is also required to be enhanced. No doubt brother and sister are not dependent but the claimant must be benefitted by the presence of brother and sister during the whole of his life. The claimant has also suffered mental pain and agony on account of wiping out of the family. So, in these circumstances, the claimant is held entitled to claim Rs.35,000/- each in respect of death of Neeraj Gupta brother and another Rs.35,000/- in respect of death of Princy sister including the amount already granted by Tribunal. FAO No. 1154 of 1991 9 The claimant is also held entitled to claim interest @ 7% p.a. on enhanced amount from the date of appeal till payment. All the appeals stand disposed of in the manner indicated above. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE March 3rd, 2010 sv