IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO NO. 411/2009 Date of Decision:19.1.2009. United India Insurance Company Limited ..........Appellant Versus Smt.Darshana Devi and others. ..........Respondents. CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. Raj Kumar Bashamboo, Advocate for the appellant- Insurance Company. JASWANT SINGH,J. The present appeal has been preferred by the appellant- Insurance Company against the award dated 26.8.2008 passed by the learned Motor Accident Claims Tribunal-III, Bhiwani (for short the Tribunal), in Claim Petition No.25 of 2003/2007/2008, whereby a sum of Rs.3,07,200/- has been awarded to the respondents-claimants on account of death of deceased Dharamvir in a motor vehicular accident. Besides this, a lump sum amount of Rs.6000/- was awarded on account of transportation, funeral charges, consortium and last rites etc. In the present appeal, an application moved by the appellant- Insurance Company under Section 170 of the Motor Vehicles Act,1988 was allowed by the learned Tribunal vide order dated 21.8.2008, permitting the appellant-Insurance Company to take up all the pleas available to the driver and owner of the offending vehicle. Admitted facts, necessary for the disposal of the instant appeal FAO NO. 411/2009 2 are that on 3.6.2003 one Dalbir Singh was going from Loharu to Kalanaur, District Rohtak by driving his own Maruti Esteem Car bearing registration no. HR 26E/6660 while Jai Bhagwan, Purshottam, Ashok Kumar and Dharamvir (deceased husband of respondents-claimant no.1) were also travelling in the said car. At about 11.30 p.m., when they reached near Charkhi Dadri at Loharu Road, a truck bearing registration No.HR-45/2969 was standing parked on the metalled portion of the road, without parking lights or placing anything around the truck which could give any indication to the other motorists that the truck was stationary. In the meantime, another truck came from the opposite side and due to the glare caused by its headlights, driver of the ill fated Maruti Esteem Car could not notice the stationary truck (HR-45/2969) and struck against the rear portion of that truck, resulting in multiple, simple and grievous injuries to the occupants of the car. As a result of this accident, except Jai Bhagwan, all other four occupants of the car succumbed to their injuries. Separate claim petitions were filed by the dependants of the deceased as well as by injured Jai Bhagwan, which were allowed by the learned Tribunal vide impugned common award dated 26.8.2008. In total five awards were passed out of which the appellant Insurance Company has chosen to challenge the award given by the learned Tribunal in respect of claim petition no.25 filed by Smt. Darshana Devi, widow and minor children/ aged parents of deceased Dharamvir. The sole contention of the learned counsel for the appellant- Insurance Company is that prior to his death, deceased Dharamvir had suffered a paralytic stroke and therefore, it is clear that the deceased was in fact earning nothing and rather was dependent. However, the learned FAO NO. 411/2009 3 Tribunal has assessed his monthly income at as Rs.2400/- per month. After hearing the learned counsel for the appellant-Insurance Company and going through the impugned award, I am of the opinion that the argument raised by the learned counsel is mis-placed and the appeal is liable to be dismissed. The argument being raised that the deceased at the time of accident was paralytic and therefore incapable of earning anything is totally unacceptable. It has come on record that as per post mortem report Exhibit P-5, the deceased was recorded as a hale and hearty person of 36 years of age. It is not disputed that deceased was maintaining a large family consisting of his wife, parents and three minor daughters. No evidence has been led by the appellant-Insurance Company vis-a-vis nature of the paralytic attack suffered by the deceased or the degree of his incapacity to earn due to that paralytic attack. Learned counsel for the appellant has also not been able to show anything which may suggest that the paralytic attack suffered by the deceased Dharamvir was of such a nature so as to render him totally incapacitated to earn in future. It is also the case of the appellant-Insurance Company itself that at the time of the accident, deceased was going to hospital for treatment. Thus, it indicates that he was undergoing treatment and his recovery from the paralytic attack could not be ruled out. So far as the assessment of monthly income of the deceased is concerned, I am of the opinion that the same is absolutely justified and no interference to upset that finding is warranted. Claimants by way of affidavit of PW-6 Zile Singh claimed that the deceased was earning Rs.6000/- per month as Carpenter. However, FAO NO. 411/2009 4 the Tribunal, in the absence of any other corroborating evidence, did not accept the monthly income of deceased Dharamvir as Rs.6000/- and instead assuming him to be a casual labourer, assessed his income as Rs.2400/- per month. After deducting 1/3rd towards the personal expenses of the deceased, the monthly dependency of the claimants was assessed at Rs.1600/- per month. Keeping in view the age of the deceased i.e. 36 years, multiplier of 12 was applied. In these facts and circumstances, I am not inclined to interfere with the award given by the learned Tribunal, merely on the ground that since the deceased had suffered a paralytic attack prior to his death in the accident in question, therefore, he was not earning anything or was so incapacitated not to maintain his family in future. Moreover, the income assessed by the learned Tribunal and multiplier, as already held above, is also perfectly justified. For the reasons stated above,finding no merit in this appeal the same is hereby dismissed in limine. 19.1.2009. (Jaswant Singh) joshi Judge