IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.41 of 2004. Judgment reserved on: 25.11.2008 Date of decision: 19.12.2008 Smt. Asha Chandel & another …….Appellants Vs. Rajinder Kumar and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. T.S. Chauhan, Advocate. For the Respondents : Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate for respondent No.3. None for respondents No.1&2. Kuldip Singh, Judge. 1. The appellants, who were claimants have filed this appeal against award dated 12.11.2003 passed by Motor Accident Claims Tribunal, Bilaspur in MAC Case No.75 of 2002, awarding Rs.6,00,000/- compensation in favour of appellants and against respondents. The respondent No.3 was directed to deposit the amount of compensation within two months from the date of award, failing which, simple interest at the rate of 9% per annum Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… from the date of award till realization shall also be payable. The award amount was made payable to appellants in the ratio of 5.1. 2. The facts in brief are that Rakesh Kumar Chandel, aged 30 years, on 15.7.2002 at about 5.30 P.M. was riding motorcycle No.HP-23-A-1049 and was proceedings from Bilaspur to Naina Devi Ji. The truck No.HP-24-2841 which was being driven by respondent No.1 and owned by respondent No.2 was coming from the opposite side and Rakesh Chandel was going uphill near Swarghat. The respondent No.1 was driving the truck in rash and negligent manner and he knocked down Rakesh Chandel who suffered multiple injuries, he was taken to Civil Dispensary Swarghat for medical aid. The injured was referred to District Hospital, Bilaspur where he succumbed to his injuries. The deceased was working as Junior Telecommunication Officer and was receiving Rs.11370/- salary per month. The appellant No.1 is the widow, and appellant No.2 is the mother of the deceased. The truck and the motorcycle were insured with respondent No.3. On these grounds petition for claiming Rs.20,00,000/- as compensation was filed by the appellants. 3. The respondents No.1,2 had contested the petition. They admitted the ownership of the truck and the fact that on the relevant date, the truck was being driven by respondent No.1, they denied that accident took place due to rash and negligent driving on the part of respondent No.1. They attributed accident to the negligence of the deceased while driving motorcycle. It has been alleged that Rakesh Chandel had died due to injuries …3… sustained by him as a result of his own negligence. They denied the age, income and occupation of the deceased. The truck was insured and liability, if any, is of the insurer. 4. The respondent No.3 had contested the claim petition and admitted that the truck was insured at the time of accident. It was however, pleaded that respondent No.1 was not holding valid and effective driving licence at the time of the accident. There is contravention of the terms and conditions of the insurance policy, hence, the insurer is not liable to indemnify the respondents No.1, The learned Tribunal took the dependency of the appellants at Rs.5,000/- per month and after applying multiplier of 10 awarded Rs.6,00,000/- with conditional interest as noticed above. In these circumstances appellants have filed the appeal. 5. I have heard Mr. T.S. Chauhan, learned counsel for the appellants, Mr. K.D. Sood, learned counsel for the respondent No.3 and gone through the record, none appeared on behalf of respondents No.1,2. Mr. T.S. Chauhan, learned counsel for the appellants has submitted that learned Tribunal has erred in assessing the dependency of the appellants at Rs.5,000/- per month, similarly multiplier of 10 has been applied on the lower side while awarding compensation to the appellants. The learned Tribunal has awarded conditional interest. The appellants are entitled to compensation as claimed by them in the petition along with at least interest at the rate of 9% per annum from the date of petition till realization. The learned counsel for the insurer has submitted that the appellants are not entitled to any enhancement …4… over and above amount awarded by the learned Tribunal. In this way, learned counsel for respondent No.3 has supported the impugned award. 6. The controversy between the parties in the present case is confined only to the quantum of compensation. The respondents have accepted the award and not challenged it. The respondents No.1 and 2 opted not to contest the appeal as none appeared on their behalf at the time of hearing of the appeal. Ex.PW-2/A is the salary certificate of Rakesh Kumar Chandel, JTO, for the month of June, 2002 and in Ex.PW-2/A his total salary Rs.11370/- has been shown, deduction of Rs.2500/- towards GPF and Rs.30/- towards CGEGIS has been shown in Ex.PW-2/A. The net carry home salary of the deceased has been shown Rs.8840/-. The date of birth of the deceased was 15.2.1972 as per matriculation examination certificate Ex.PR. Thus the deceased was 30 years of age at the time of accident and death. The learned Tribunal has taken carry home salary of Rakesh Chandel at Rs.8840/- and out of this an amount deduction of Rs.3840/- was deducted on account of expenses expected to be incurred by the deceased. The contribution to the family was assessed at Rs.5000/- per month. The learned Tribunal has committed basic error in taking carry home salary Rs.8840/- per month of the deceased. The learned Tribunal has ignored that the deceased was deducting Rs.2500/- per month on account of GPF which was to come back to the deceased in absence of his death, Rs.2500/- per month was otherwise accretion to the estate of the …5… deceased to which appellants are entitled. In the salary certificate there is another deduction of Rs.30/- towards CGEGIS, therefore, income of the deceased by way of salary can safely be taken at Rs.11340/- (Rs.11370-Rs.30/- ). On the basis of unit system keeping in view the number of claimants, who were dependent on the deceased, the personal expenses of deceased comes to Rs.3790/- or say Rs.4,000/- per month and in this way per month dependency of the appellants comes to Rs.7340/- ( Rs.11340 – Rs.4000/-) . The annual dependency of the appellants comes to Rs.7340 x 12 = Rs.88,080/-. In Oriental Insurance Company Ltd. vs. Jashuben and others (2008) 4 SCC 162, the deceased was 35 years and the Hon’ble Supreme Court has applied multiplier of 13. In New India Assurance Co. Ltd. vs. Kalpana (SMT) and others (2007) 3 SCC 538, the deceased was 33 years and the Hon’ble Supreme Court has applied multiplier 13. In the present case, the deceased was 30 years of age and therefore, 14 is the appropriate multiplier, hence, appellants are entitled to compensation Rs.88,080 x14 = Rs. 12,33,120/-- . On this amount the appellants are entitled to interest at the rate of 9% per annum from the date of filing of the petition till payment. 7. The learned counsel for the respondent No.3 has submitted that suitable deduction on account of payment of income tax is to be made from the per month salary of the deceased. Salary Certificate Ex.PW-2/A indicates only two …6… deductions as noticed above. In the salary certificate no deduction on account of income tax has been referred. There is nothing on record to show, even if, the plea of respondent No.3 is accepted, what should be the deduction on account of payment of income tax. At the time of hearing it has not been elaborated at what rate and on what amount income tax should be deducted from the salary of the deceased, therefore, in absence of evidence, no deduction from the income of the deceased on account of income tax can be made and the contention of learned counsel for the respondent No.3 is rejected. The learned Tribunal has not properly assessed the compensation payable to the appellants on account of death of Rakesh Kumar Chandel, similarly interest has also not been awarded as per law. Therefore, impugned award is liable to be modified. 8. No other point was urged. 9. The result of above discussion, the appeal is allowed, impugned award is modified, an award of Rs12,33,120/- is passed in favour of appellants (claimants) and against the respondents No.1 and 2, driver and owner of the truck as well as respondent No.3 insurer along with interest at the rate of 9% per annum from the date of the filing of the petition i.e., 26.10.2002 till payment of the amount. The truck was insured with respondent No.3, therefore, whole of the amount of compensation along with interest shall be paid by respondent No.3 to appellants in the ratio of 5.1 as held by learned Tribunal. The amount of compensation …7… shall include amount, if any, awarded or paid to appellants under Section 140 of the Act. No costs. ( Kuldip Singh ) Judge. December 19 ,2008 (sks)