IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3591 of 2007(O&M) Date of decision:10.12.2010 Mrs. Poonam Paul and others ....Appellants versus State of Uttaranchal through Secretary Transport Department Government of Uttaranchal, Dehradun and another. ...Respondents II. FAO No.4812 of 2007(O&M) Uttranchal Roadways Corporation and another ....Appellants versus Mrs. Poonam Paul and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. C.S.Pasricha, Advocate, and Mr.H.S.Chawla, Advocate, for the appellants in FAO No.4812 of 2007 and for respondents in FAO No.3591 of 2007. Mr. Ashwani Arora, Advocate, for the appellants in FAO No.3591 of 2007 and for respondents in FAO No.4812 of 2007. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. FAO No.3591 of 2007 is for enhancement of claim of compensation filed at the instance of the parents and sister. The State of Uttranchal is itself in appeal in FAO No.4812 of 2007. FAO No.3591 of 2007(O&M) - 2 - I. FAO No.3591 of 2007 2. In FAO No.3591 of 2007, the deceased was a 27 years old Engineering Graduate with Management Degree and was an Area Sales Manager in a multinational company that manufactures soft drinks under the brand name Coke. The proved salary on record was Rs.6,54,790/- per annum. The Tribunal had taken 50% deduction for personal expenses and applied a multiplier of 5 and awarded compensation of Rs.15,94,475/-. Learned counsel has submitted that the multiplier must have been taken on the basis of the age of the deceased or at any rate, the multiplier is relatable to the younger of the claimants between the parents. He also contend that the Tribunal must have provided for a prospect of increase in the income and awarded appropriate compensation for the same. 3. I would place the entire reckoning of compensation which conforms to what has been laid down by the decision in Sarla Verma vs. DTC, reported as 2009 6 SCC 121 as explained subsequently in a decision in Shanti Devi vs. New India Insurance Company, reported as JT (2010) 12 SC 106. Since the deceased was in a high income group, the tax assessed was Rs.1,52,437/- and the net amount will, therefore, be Rs.4,82,293/-. If an amount of 50% is added as prospect of future increase, the amount will be Rs.2,41,150/- which will also take component to tax and I will take the prospect of increase minus tax to a sum of Rs.2 lacs, take average salary to be Rs.6,82,293/-. 50% of the same shall be deducted for personal expenses and contribution to the family would mean Rs.3,41,146.50. If a multiplier of 13 is to be adopted FAO No.3591 of 2007(O&M) - 3 - taking the age of the younger of the parents to be relevant, the amount of compensation will be Rs.44,34,904/-. I will not take the entire amount as the amount payable when we are factoring the compensation for higher income group. Even the choice of multiplier has to be reasonable to ensure that it throws a return which approximates to what we take as dependent or contribution to the family. If we must assume that the return to the family would be in the range of about Rs.30,000-40,000/- even then a a compensation of Rs.44,34,905/- is still be excessive. This issue of choice of multiplier in cases of higher income group and compensation for a lesser value was suggested by the Hon'ble Supreme Court in United India Insurance Ltd. vs. Patricia Jean Mahajan, reported as 2002 ACJ 1441. In my view, the appropriate compensation would still be about Rs.35 lacs. For that still make an annual return close to about Rs.35,000-40,000/- per month. I have scaled down the amount even less than of the value the multiplier fetches to conform to what I think will be appropriate and just. In all cases of compensation there is a definite approximation that the Court makes and when we are applying some definite yardstick, it is only to ensure that there is a homogeneous approach and certitude in the compensation determined. If I make a deviation from a multiplier suggested in Sarla Verma's case, it is to satisfy my own judicial conscience that the compensation awarded is not a lottery, but shall still be what would ultimately justify as appropriate and just. The amount of compensation which was determined by the Tribunal was Rs.15,00,000/- and I am increasing to another Rs.20,00,000/- in the manner in which I have worked out. The increased FAO No.3591 of 2007(O&M) - 4 - amount of compensation shall also attract interest @ 6% from the date of the petition till the date of payment. In the presence of the parents, an unmarried sister cannot be taken as dependent, except that in Indian social conditions that a brother voluntarily cares for an unmarried sister and contributes substantively to the parents to settle their daughter. I will not, therefore, make any separate provision for the sister and make the compensation which is determined to be distributed to the parents equally. 4. The appeal is allowed to the above extent. II. FAO No.4812 of 2007 5. The appeal by the Uttranchal Road Corporation is that the vehicle in which the claimant was travelling had also contributed to the accident and, therefore, the case could not have been prosecuted without impleading the owner and the insurer of the vehicle in which he was travelling. I cannot accept this argument. There is a distinction between a contributory negligence and composite negligence and a person, who is merely a passenger in a car, he cannot in any way be said to have contributed to the accident. If the particular vehicle in which he was travelling had contributed to the accident, the claimants were entitled to sue against anyone of the joint tort feasors. The case of the claimants cannot suffer for any impleadment of the joint tort feasor. The Corporation against whom the award is passed could have at best have only a relief for contribution if the joint tort feasor was also a party in the proceedings. If such a tort feasor is not a party, it could have been still possible if a petition had been filed for impleadment and an adjudication FAO No.3591 of 2007(O&M) - 5 - sought at the time of trial before the Tribunal. The application has been filed for impleadment of the driver, owner and the insurer of the other vehicle involved in the accident in CM No.23740-CII of 2007. I cannot entertain such an application in an appeal for the first time, for, it would require reopening the trial again which is of no consequence as far as the claimants are concerned. It is essentially an inter se dispute between two tort feasors and if the appellant is so advised, he shall be at liberty to take the liability cast through this award as constituting a cause of action and proceed independently in a suit. Even if any finding regarding contributory negligence of the driver of the vehicle in which the deceased was travelling has been made, parties shall be at liberty in independent proceedings to seek an adjudication of their respective contentions and seek for apportionment amongst themselves of the liability which is cast through the award in the connected appeal in FAO No.3591 of 2007. 6. FAO No.4812 of 2007 is disposed of on the above terms. (K.KANNAN) JUDGE 10.12.2010 sanjeev/gulati