FAO No.3458 of 2010 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 3458 of 2010 Date of decision. 07.12.2011 Smt. Krishna Devi and others .... Appellants Versus Kulvir Singh and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. R.K. Lamba, Advocate for the appellants. Ms. Vandana Malhotra, Advocate for the insurance company. **** Vijender Singh Malik, J. This is claimants' appeal for enhancement of compensation awarded to them on the death of Daya Chand in a road side accident that took place on 06.05.2008. The claim petition brought by the claimants under the provisions of section 166 of Motor Vehicles Act, 1988(for short 'the Act') has been allowed vide award dated 03.10.2009 by learned Motor Accidents Claims Tribunal, Gurgaon (for short 'the Tribunal'), vide which a sum of Rs.3,55,600/- has been awarded as compensation to the claimants on the death of said Daya Chand. The case set up by the claimants for compensation in a sum of Rs.25,00,000/- is as under:- FAO No.3458 of 2010 --2-- On 06.05.2008 Daya Chand alongwith one Krishan Kumar was going from Rewari to village Ram Singh Pura on a motorcycle. At about 1.00 or 1.30 PM, when they were near ITI, Railway Level Crossing, Jhajjar Road, Rewari, a trailer bearing registration no. PB-06G/9413 driven by respondent no.1 at a very high speed as also in rash and negligent manner came from their backside and hit the motorcycle. On account of the same, the deceased fell down on the road and was run over by the trailer resulting in his death. The deceased had been an ex- serviceman. He was working as driver of light motor vehicle and was earning Rs.10,000/- per month. A sum of Rs.25,000/- was spent on his funeral and last rites. Respondents no.1 and 2 chose not to contest the claim petition and they were proceeded against ex-parte. Respondent no.3, the insurer has resisted the claim petition. It has denied the very accident to have occurred due to rash and negligent driving of trailer. It is rather claimed that the accident may have occurred due to the negligent driving of the motorcycle by the deceased himself. It is also averred that respondent no.1 was not holding a valid and effective driving licence at the time of the accident and, therefore, respondent no.2 has violated the terms and conditions of the insurance policy. The other averments of the claimants are denied and the petition is claimed to be dismissed. FAO No.3458 of 2010 --3-- On the pleadings of the parties, the following issues were framed by learned Tribunal :- “1- Whether the accident in question was caused by respondent no.1 while driving vehicle bearing registration no. PB-06G/9413 in a rash and negligent manner resulting into death of Daya Chand, as alleged ?OPP 2- If issue no.1 is proved, whether the claimants are entitled to any compensation and if so to what extent and from whom ?OPP 3- Whether respondent no.3 is not liable to make payment of any compensation on account of alleged violation of the terms and conditions of the insurance policy?OPR(3) 4- Relief.” Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal has made the impugned award. Feeling dis-satisfied with the awarded amount, the claimants have brought this appeal for enhancement of compensation. I have heard Mr. R.K. Lamba, learned counsel for the appellants, and Ms. Vandana Malhotra, learned counsel for the insurance company and have gone through the record carefully. Learned counsel for the appellants has challenged the computation of compensation in the award on three grounds. According to him, learned Tribunal has erred in taking the income of the deceased at Rs.3600/- per month. He has further submitted that when the dependent family members i.e. the claimants were seven in number, learned FAO No.3458 of 2010 --4-- Tribunal has erred in assessing the dependency of the claimants at 2/3rd of the said income by deducting 1/3rd therefrom towards the personal expenses of the deceased on himself. The third point on which he has challenged the award is of multiplier. According to him, learned Tribunal has erred in adopting the multiplier of 12, though the multiplier of 13 was available in the case. Elaborating the above given submissions, learned counsel for the appellants has submitted that the deceased was an ex-serviceman and he was driving light motor vehicle. He has submitted that he possessed a driving licence for light motor vehicle and learned Tribunal should have assessed the income of the deceased well above Rs.3600/- per month. According to him, as laid down by Hon'ble Supreme Court of India in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77, when the dependent family members were seven, the deduction should have been 1/4th. He has further submitted that the deceased was 46 years of age and as per Smt. Sarla Verma and others' case (supra ), the multiplier of 13 should have been adopted as the victim had been in the age group of 46 to 50. Learned counsel for respondent no.3 has tried to rebut the submissions of learned counsel for the appellants on the income of the deceased only. According to her, there was nothing in the evidence led by the claimants that the deceased was an ex-serviceman or that he was doing the job of driver. According to her, the deceased was just FAO No.3458 of 2010 --5-- possessing a driving licence and the same could not be held sufficient to prove that he was working as a driver of a light motor vehicle and was earning something more than Rs.3600/- per month. Mere possession of driving licence would not prove that the deceased was working as a driver. Some evidence should have been brought to prove that the deceased was working as a driver. His employer,if he was a paid driver, could be examined. Nothing such was done and in these circumstances, when no evidence was even produced to prove that the deceased was ex-serviceman, the income of Rs.3600/- per month has been rightly taken for the deceased by learned Tribunal. Though the claimants-appellants before me are seven in number and in case the number of dependent family members exceed six, the deduction laid down in Smt. Sarla Verma and others' case (supra) is 1/5th yet Balbir Singh, father of the deceased, who is one of the claimants/appellants cannot be said to be a dependent family member of the deceased. Therefore, the number of dependent family members in this case are six and in this case, the deduction of 1/4th is applicable. As the deceased had been 46 years old at the time of his death, the multiplier as per Smt. Sarla Verma and others' case (supra) should have been 13 instead of 12. Calculating the compensation after taking the dependency of the claimants at 3/4th of income, the annual dependency of the claimants comes to Rs.32,400/- and multiplied by 13, the amount lost by the FAO No.3458 of 2010 --6-- claimants is assessed at Rs.4,21,200/-. Adding to it, a sum of Rs.20,000/- as compensation for loss of consortium, loss of estate and funeral expenses, I find that the claimants-appellants are entitled to Rs.4,41,200/- as compensation. The appeal is consequently allowed and the amount of compensation is enhanced from Rs.3,55,600/- to Rs.4,41,200/-, which shall be payable with interest as allowed by learned Tribunal by way of the impugned award to the appellants. (VIJENDER SINGH MALIK) 07.12.2011 JUDGE dinesh