IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) Nos.97 & 109 of 2006. Date of Decision: 11.9.2009. FAO No.97 of 2006: Smt.Deepa Devi and others .. Appellants. Versus. Sh.Karam Singh and others .. Respondents. FAO No.109 of 2006: Oriental Insurance Co. Ltd. .. Appellant Versus Smt.Deepa Kumari and others .. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellants: Mr. M.S. Guleria, Advocate in FAO No.97 of 2006 and Sh.Lalit Kumar Sharma, Advocate in FAO No.109 of 2006. For the Respondents: Mr.Shrawan Dogra, counsel for respondent No.1 in FAO No.97 of 2006 and for respondent No.5 in FAO No.109 of 2006. Mr.M.S. Guleria, counsel for respondents 1 to 4 in FAO No.109 of 2006. Deepak Gupta, J.(Oral) By this judgment the aforesaid two appeals are being disposed of since they arise out of the same accident. Briefly stated the facts of the case are that Kahan Chand was travelling in a Mahindra Utility vehicle bearing No.HP-31-4731 on 8.3.2004. At about 9.45 p.m. this vehicle met with an accident near Bada Mod near Nihri, Tehsil Sundernagar, District Mandi, H.P. Kahan Chand died in the - 2 - accident. The claimants who are the widow, minor children and mother of deceased Kahan Chand filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation. It was alleged in the claim petition that the deceased Kahan Chand had gone to Brohakadi on that day. He purchased one quintal of stone salt from Brohakadi and hired the Mahindra Utility vehicle for carrying the said salt to his native place Nihri. He was also travelling in the said vehicle. The owner-cum-driver filed reply to the claim petition in which he admitted the factum of hiring of the vehicle by Kahan Chand for carrying the stone salt from Brohakadi. The Insurance Company took up the plea that the deceased was a gratuitous passenger in the goods vehicle and therefore it was not liable. The learned Tribunal rejected the plea of the Insurance Company and awarded compensation of Rs.7,73,200/- along with interest @ 7.5% p.a. from the date of filing of the petition to the petitioners. This award has been challenged by the Insurance Company as well as by the claimants. The case of the Insurance Company is that the deceased was a gratuitous passenger in a goods vehicle and therefore the Insurance Company is not liable. The claimants in their appeal claimed enhancement of compensation. First I shall take up the appeal filed by the Insurance Company. As noted hereinabove the case of the claimants as well as the owner-cum- driver was that the deceased was travelling as owner of the goods and was carrying salt in the vehicle. The claimants examined two witnesses, namely, PW-5 and PW-6 in support of their claim. PW-5 Sh.Narender Kumar runs a shop at Brohakadi. According to him, Kahan Chand had kept the salt at his shop. He came at about 8.30 p.m. collected the salt and loaded the same in the Jeep in question in his presence. He also settled freight charges amounting to Rs.200/- with the driver of the vehicle. The only suggestion - 3 - put to this witness by the Insurance Company is that Kahan Chand did not come to his shop nor any freight was settled for carrying salt in his presence. There is no suggestion that the salt was not loaded in the vehicle. PW-6 Gulab Singh was also travelling in the same Jeep. He supported the case of the claimants that the deceased Kahan Chand had hired the Jeep for carrying the salt from Brohakadi and the freight was settled at Rs.200/-. The only suggestion put to this witness was that the jeep was never hired by him or the deceased. Karam Singh, owner-cum-driver of the vehicle in question appeared in the witness box as RW-1. He stated that Kahan Chand had hired the jeep and had paid him Rs.200/- as freight charges. The Insurance Company examined RW-2 Jai Ram who was engaged as an Investigator. Admittedly this witness carried out the investigation three months after the accident took place. He recorded the statements of three persons, which are Exts.R- 4 to R-6. The investigator had no authority to administer oath to these persons or record their statements. The statements of these persons are not admissible worth the paper on which they are written. This is a totally hearsay evidence and therefore no reasons were given by the Insurance Company as to why these persons were not examined before the Tribunal. If the Insurance Company wanted to rely the statements of these persons they should have been summoned and examined in the Court. The Investigator was not authorized under law to administer oath to these persons. The statements of these persons are therefore not properly proved and no reliance can be placed on the same. Reliance is then placed on the OD claim form alleged to have been filed by the claimants in which it is stated that the vehicle was empty at the time of the accident. When the owner-cum-driver appeared in the witness box he was not confronted with this claim form. RW-3 has proved this - 4 - claim form. He admitted that it does not bear the signatures of the owner- cum-driver. Therefore, this document cannot be used against the owner- cum-driver. Lastly it was contended by Sh.Lalit Sharma that the claimants themselves have placed reliance on the FIR and in the FIR it is not mentioned that any salt was being carried in the vehicle and therefore it cannot be held that the deceased was travelling as owner of goods. He has relied upon a judgment of the Apex Court in National Insurance Company Ltd. vs. Rattani and others, (2009) 2 SCC 75. In my considered view this judgment has no application to the facts of the present case. In the case before the Apex court in the claim petition itself it was stated that after the accident took place one of the occupants of the vehicle who was travelling as a ‘barati’ in the vehicle in question had lodged the FIR No.98 which contained the detailed manner of the accident, how it took place, and the same may be read as a part of the petition. It was in this context that the Apex Court has held that the claimants are bound by the contents of the FIR since they themselves have stated that the detailed manner of the accident, how it took place etc. is stated in the FIR which may be read as a part of the petition. In the present case except for making a reference to the FIR there is no such averment in the claim petition. In the present case another distinguishing factor is that the FIR was lodged not at the instance of the occupant of the vehicle but by the Police Officer much thereafter. This was not an eye witness account and therefore the version given in the FIR cannot be read against the claimants. In any event while recording the FIR it was not incumbent upon the Police Officer to note down what were the goods being carried in the vehicle. Therefore, the same cannot be read against the claimants or the owner-cum-driver. In my view the learned Tribunal rightly held on the basis of the evidence that the deceased was - 5 - travelling as owner of the goods. This finding is based on the evidence on record and calls for no interference. The appeal of the Insurance Company is liable to be rejected. As far as the appeal of the claimants is concerned, it stands proved on record that the deceased was an employee of the State Government. The salary certificate has been proved on record as Ext.PD. This shows his total gross emoluments as Rs.9700/- per month. The deceased getting deducted Rs.3500/- on account of GPF. The net amount payable was Rs.6170/-. It was urged on behalf of the claimants that the deceased being a government servant would definitely have had some promotional avenues and his income would have increased in future. The learned Tribunal has assessed the income of the deceased as Rs.8000/- and deducted 1/3rd for the personal expenses and applied a multiplier of 12 and assessed the compensation. The Tribunal totally erred in deducting the amount of GPF. This was a saving being made by the deceased which would have accrued to the estate of the deceased. The savings were a direct loss to the claimants and in fact out of the savings being made no amount would have been deducted for the personal expenses of the deceased. As far as the plea of promotional avenues and increase in pay in future is concerned the law by now is well settled that the claimants must lead some evidence at least to show the promotional avenues. Unfortunately in the present case no such evidence has been led. However, the method followed by the Tribunal in assessing the compensation is totally wrong. It is a well established principle of assessment of damages that loss to the family may occur on two counts; firstly on account loss to the estate and secondly on account loss to the dependency. In this case, Rs.3500/- which were being deducted as GPF was a loss to the estate and therefore - 6 - this amount could not have been deducted while assessing the compensation. In addition to the gross salary of Rs.9700/- per month being received by the deceased it is alleged that he was owning land and was deriving income of Rs.5000/- per month from the agriculture. It is also contended that the Court can take judicial notice of the fact that with the implementation of the 5th Pay Commission Report in respect of the Central Government employees which has been accepted by the State Government the pays of all employees are increasing substantially. Keeping in view all these factors and also future chances of promotion of the deceased it would not be inappropriate to assess the total income of the deceased at Rs.12,000/- per month. If 1/3rd is deducted for the personal expenses of the deceased the loss of dependency works out to Rs.8000/- per month i.e. Rs.96000/- per year. Next comes the question of the proper multiplier to be applied. The Apex Court has in a number of judgments held that the multiplier given in schedule-II to the Motor Vehicles Act can be used as a guideline. The deceased was aged about 35 to 40 years and as per the schedule the multiplier would be 16. However, since one of the claimants is the mother of the deceased, I feel that appropriate multiplier should be 15. The total loss on account of loss/dependency works out to Rs.14,40,000/-. In addition thereto the widow is entitled to Rs.10,000/- for loss of consortium. The claimants are also held entitled to Rs.5000/- for funeral expenses and Rs.10,000/- for conventional damages. The total compensation works out to Rs.14,65,000/-. In view of the above discussion, the appeal of the Insurance Company is dismissed, the appeal filed by the claimants is allowed, the award of the Tribunal is modified and compensation is enhanced from - 7 - Rs.7,73,000/- to Rs.14,65,000/-. The claimants shall also be entitled to interest as awarded by the Tribunal and also for the costs of litigation which is assessed at Rs.5000/-. September 11, 2009 ( Deepak Gupta ), PV Judge.