FAO No.1828 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1828 of 2007 Date of decision 25 .1.2010. Anjali Soni and others ...... Appellants. versus Satnam Singh and others ...... Respondents. Present : Mr. Tilak Raseen, Advocate for the appellants. Mr. Pardeep Goyal, Advocate for respondent No.3. Mr. R.C.Gupta, Advocate for respondent No.4. K.C.PURI. J. Anjali widow, Shubham Soni minor daughter and Shantnu minor son of Ajay soni i.e. Claimants/appellants have directed this appeal for enhancement of the compensation amount awarded by the learned Motor Accident Claims Tribunal, Jalandhar vide Award dated 2.11.2006. Briefly, case of the claimant is that on 20.1.2005 at about 11.45 p.m, Ajay Soni was coming from Amritsar to Jalandhar in his car No.PB-08-AM-2022 along with his father-in-law and petitioners. Ajay Soni was driving the car and Anjali Soni was sitting with him on the front seat. When the said car reached near Kartarpur at about 1.30 a.m., in the morning of 21.1.2005, a truck bearing registration No.HR-37-4045, having FAO No.1828 of 2007 2 only one head light on left side, being driven rashly and negligently by respondent No.1 came from the opposite side and hit the car of Ajay Soni as a result of which all the occupants of the car suffered injuries. They were removed to Sacred Heart Hospital, Maqsudan. Ajay Soni was declared brought dead. The truck driver slipped away from the place of occurrence after the accident. FIR No.4 dated 21.1.2005 under Sections 279,337, 338 and 304-A IPC was registered against respondent No.1. The deceased was about 44 years old at the time of his death and was working as Assistant Director in Central Institute of Hand Tools, Jalandhar and his monthly salary was Rs.21,854/- per month. Notice of the petition was issued to the respondents. Respondents No.1,2 and 5 were proceeded against ex-parte. Respondent No.3 denied all the allegations of the petition and has alleged that respondent No.1 was not holding a valid driving licence at the time of accident and that the accident if any took place due to the negligence of the deceased himself and a prayer for dismissal of the petition has been made. Respondent No.4 has alleged that he is only a proforma respondent being the insurer of the Maruti Car, which is insured with it was not at fault at the time of accident. Therefore, the compensation should not be fastened upon respondent No.4. Following issues were framed :- 1. Whether Ajay Soni died in an accident which took place on 20/21.1.2005 due to rash and negligent driving of truck bearing No.HR-37-4045 by its driver respondent No.1? OPP. 2. Whether the claimants are entitled to the compensation if so how much and from whom ?OPP. FAO No.1828 of 2007 3 3. Whether the driver of truck namely Satnam Singh was not holding valid driving licence, if so, its effect ?OPR. 4. Relief. The parties have led their respective evidence. The Tribunal while deciding issue No.1 held both the drivers equally responsible for causing the accident. While deciding issue No.2, the Tribunal calculated the compensation amount to be Rs.13,48,200/-. However, in view of contributory negligence held by the Tribunal, the claimants were held entitled to the extent of half of the aforesaid amount i.e. Rs.6,74,100/-. However, issue No.3 was decided against the respondents and in favour of the claimants. The claim petition stood accordingly allowed for grant of compensation to the tune of Rs.6,74,100/- along with interest @ 6% p.a. from the date of claim petition till realization of the said amount. Respondent Nos.1 to 3 were held liable jointly and severally. Feeling dis-satisfied with the aforesaid award, the claimants have preferred the present appeal for enhancement. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants has challenged the award on the following two grounds :- (1)The Tribunal has wrongly assessed the contributory negligence of deceased Ajay Soni; and (2) The amount assessed by the Tribunal is on lower side. So far as the point of negligence is concerned, the counsel for the appellants has submitted that driver of truck No.HR No.37-4045 i.e. FAO No.1828 of 2007 4 Respondent No.1 was driving the truck rashly and negligently. Ajay Soni was driving the car on its correct side. The truck has only one head light on the left side. Respondent No.1 brought his truck to the wrong side of the road and hit the car of Ajay Soni as a result of which, all the occupants of the car had suffered injuries and Ajay Soni succumbed to the injuries sustained by him in the accident. It is submitted that although it is a head on collusion but accident has taken place due to rash and negligent driving of respondent No.1. Claimant Anjali Soni has supported the version of the claimants in this regard. She was duly cross-examined but nothing could be brought on the record to discard her sworn testimony. Virinder Ghai (PW- 2). Injured eye-witness has also supported the case of the complainant. A criminal case under Section 304-A, IPC was registered against Satnam Singh respondent No.1. So, the Tribunal has wrongly relied upon the statement of RW-1 Satnam Singh regarding contributory negligence. I have considered the submission of the learned counsel and have gone through the evidence on the record. The evidence regarding negligence is the testimony of Anjali widow of deceased. Virinder Ghai (PW-2) father-in-law of the deceased and statement of Satnam Singh (RW-1) driver of truck No. HR-37-4045 besides that FIR has been proved by the claimants. So, only the interested witnesses from both the sides have come to depose about the manner of accident. The Tribunal has held that deceased Ajay Soni is negligent to the extent of 50%. So, in these circumstances, the substantial evidence has also to be taken into account, while determining the negligence. Satnam Singh (RW-1) in the cross-examination has stated that as per photographs, the car FAO No.1828 of 2007 5 was lying on the left side of the road. However, the fact remains that it is head on collusion. So, in these circumstances, while re-appreciating the evidence, I came to the conclusion that the negligence on the part of Satnam Singh is more than the negligence on the part of Ajay Soni. So, it is held that accident has taken place due to the contributory negligence but the fault of Ajay Soni deceased is to the extent of 25% and that of Satnam Singh driver-respondent No.1 of the truck is to the extent of 75%. So, the finding of issue No.1 stands modified accordingly. Now reverting to the quantum of compensation. The Tribunal has taken Rs.16,852 as carry home salary and after deducting 1/3rd amount for expenses of the deceased-Ajay Soni yearly dependency has been taken Rs.1,34,820/-. The age of the deceased has been taken as 44 years and the multiplier applied by the Tribunal was of 10. So, dependency calculated by the trial Court does not call for any interference. However, the multiplier applied at the age of 44 years should have been 14 in view of authority Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr. 2009(3) R.C.R.(Civil) 77, the multiplier of the age group of 41 to 45 should have been 14. The deceased was a Government servant, so it is obvious that he would otherwise have been drawn the salary upto the age of 58 years. So, the multiplier in this case is held to be 14 years. The amount calculated in this manner comes to Rs.18,87,480/-. The trial Court has not taken into account the amounts which would have been spent by the claimants on funeral charges and also loss of consortium of love and affection of the estate. So, an amount of Rs.12,520/- is calculated in this regard and the claimants are held entitled FAO No.1828 of 2007 6 to claim Rs.19 lacs in all. Since, the contributory negligence of the deceased has been considered to the extent of 25%. So, the claimants are held entitled to claim Rs.14,25,000/- after deducting the 1/4th amount from the said amount i.e. Rs.19 lacs. The claimants shall be entitled to interest at the rate of 6% from the date of claim petition till realization. The amount shall be shared by the claimants in the ratio as per award. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE January 25 , 2010 sv