F.A.O. No. 4402 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH F.A.O. No. 4402 of 2007 (O&M) Date of Decision : 25.1.2010 Sangeeta Maghan & others .......... Appellants Versus Chander Pal & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. A.K. Jain, Advocate for the appellants. Mr. Vishal Chaudhari, Advocate for Mr. Vinod Chaudhari, Advocate for respondents No. 3 & 5. **** VINOD K. SHARMA, J. This appeal by the claimant / appellants is directed against the award dated 8.9.2007, passed by the learned Motor Accident Claims Tribunal, Jind (hereinafter referred to as “the Tribunal”), Jind. The claimants filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”), on the pleadings that on 20.1.2005, deceased Ajay Pal Maghan had started at 9.00 A.M. from Jind to go to Chandigarh along with Sh. Birender Kumar Garg son of Baldev Krishan r/o village Derabasi and Sh. Deepak Mittal s/o Sh. Lalit Kumar, r/o H. No. 347, Sector 35-A, Chandigarh. Deceased Ajay Pal Maghan was driving the Wagon-R car No. HR-31C-3014, whereas Sh. Birender Kumar and Sh. Deepak Mittal were following him in Accent car F.A.O. No. 4402 of 2007 2 No. CH-03K-00551. When they reached near Rana Polycot Factory at village Alamgir, a truck No. HR-55-4218 driven rashly and negligently in high speed by respondent No.1 Chander Pal, came from opposite side and struck the Car No. HR-31-C-3014, which resulted into multiple injuries on the body of Ajay Pal Maghan. Ajay Pal Maghan succumbed to his injuries. The truck driver after alighting from truck ran away from the spot after leaving the truck at the spot. The accident was seen by Birender Kumar and Deepak Mittal, who were following the car of Ajay Pal Maghan. Ajay Pal Maghan was taken to Civil Hospital, Derabassi by them, where he was declared brought dead. FIR was also registered against respondent No.1. It was claimed, that the accident had occurred due to rash and negligent driving of the truck driver. Respondents No.1 & 2 were proceeded against ex parte. The other respondents filed separate written statement. Respondent No.3 & 5 took a stand, that the claimants had no cause of action to file the present petition and further, that they had not come to the Court with clean hands. The claim petition was said to be bad for mis-joinder and non-joinder of necessary parties. On merits, it was denied, that the deceased was both serviceman and businessman. It was also denied, that the deceased was an income tax payee. The accident was also denied. The FIR was said to be false and based on surmises and conjectures at the instance of the claimants. The claim petition was also said to be filed in collusion with respondents No.1, 2 & 4. It was admitted that truck was insured w.e.f. 8.2.2004 to 7.2.2005 and the car was also registered with the same respondent. The Insurance company denied it's liability to pay compensation on the plea that F.A.O. No. 4402 of 2007 3 the truck was being driven by a person who did not have a valid driving licence. A plea was also raised that the truck was being driven against the terms and conditions of the Insurance Policy without having route permit. The negligence was attributed to deceased Ajay Pal Maghan in the accent. The quantum of compensation claimed was also disputed. Respondent No.4 in the written statement admitted that deceased Ajay Pal Maghan was an employee with respondent No.4 and was working as full time Director. His salary was said to be Rs. 18,000/- (Rupees eighteen thousand only) per month plus 12% Provident Fund Share of the employer from the answering respondent. It was pleaded by respondent No.4 that he was being paid travelling expenses and other allowances. The company was said to have been incorporated by deceased Ajay Pal Maghan. He was said to be an income tax payee. The stand of respondent No.4 was also that the accident had occurred due to the rash and negligent driving of the truck. Replication was not filed. On the pleadings of the parties, the learned Tribunal framed the following issues :- “1. Whether the accident in question has occurred due to the rash and negligent driving of respondent No.1 Chander Pal, on 20.1.2005 at 1.45 P.M. near Rana Polykot Factory, Village Alamgir, P.S. Lalru, District Patiala, while driving the truck bearing No. HR-55-4218, as alleged, in which Ajay Pal Maghan s/o Padam Kumar Maghan has died in the alleged accident? OPP F.A.O. No. 4402 of 2007 4 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to the amount of compensation if so to its effect and then the petitioner is entitled to recover what amount of compensation, if so to how much and from whom the petitioner is entitled to recover ?OPP 3. Whether the petition is bad for mis-joinder and non-joinder of necessary parties?OPR 4. Relief.” On appreciation of evidence, the learned Tribunal recorded a finding that the accident had occurred due to the rash and negligent driving of respondent No.1 Chander Pal, on 20.1.2005 at 1.45 P.M. near Rana Polycot Factory, Village Alamgir, P.S. Lalru, District Patiala, while driving the truck bearing No. HR-55-4218, in which Ajay Pal Maghan s/o Padam Kumar Maghan died. Issue No.3 was decided against the respondents and the petition was not held to be bad for mis-joinder and non-joinder of necessary parties. On issue No.2, the learned Tribunal held the claimants entitled to compensation to the tune of Rs. 18,06,620/- i.e. Rs. 17,97,120/- (Rupees seventeen lac ninety seven thousand one hundred and twenty only) towards loss of dependency, a sum of Rs. 2,000/- (Rupees two thousand only) for funeral expenses and Rs. 2,500/- (Rupees two thousand and five hundred only) for loss of estate. Another sum of Rs. 5,000/- (Rupees five thousand only) were awarded to the widow as consortium. The relief clause in the award reads as under :- “17. In view of the above discussion, the F.A.O. No. 4402 of 2007 5 petition is partly allowed with costs. The petitioners are entitled to a total compensation amount of Rs. 18,06,620/- along with interest at the rate of 7.5% per annum from the date of filing of the petition till realization. Petitioners no.2 and 3 that is the minor children of deceased Ajay Pal Maghan are entitled to a sum of Rs. 5,00,000/- each, which amount shall be deposited in a nationalized bank in an interest bearing scheme till they attain majority. Petitioner no.4 that is the mother of the deceased is entitled to the amount of Rs. 50,000/- as compensation, which amount will be given in cash to her. Remaining amount i.e. Rs. 7,56,620/- (which includes Rs. 5000/- as consortium) along with interest at the rate of 7.5% will be given to the petitioner no.1 namely Sangeet Maghan, who is the widow of deceased. Out of the amount given to the petitioner no.1, 50% amount will be given to the petitioner no.1 in cash and 50% amount will be deposited in a nationalized bank in an interest bearing scheme for five years. File be consigned to the record room.” The award has also been challenged by the Insurance Company to challenge the compensation to be on higher side by filing FAO No. 4820 of 2007 United India Insurance Co. Ltd. Vs. Sangeeta Maghan & others. The learned counsel appearing on behalf of the appellants has challenged the finding on issue No.2 by contending that the salary certificate produced on record showed that the deceased was drawing salary of Rs. 18,000/- (Rupees eighteen thousand only) per month beside the employer share of provident fund amounting to Rs. 2160/- (Rupees two F.A.O. No. 4402 of 2007 6 thousand one hundred and sixty only) per month, therefore, the total income of the deceased at the time of his death was Rs. 20,160/- (Rupees twenty thousand one hundred and sixty only) per month. The contention of the learned counsel for the appellant was that the learned Tribunal wrongly assessed the compensation by taking net payable salary at Rs. 14,040/- (Rupees fourteen thousand and forty only) per month. The contention of the learned counsel for the appellants, therefore, was that for computing the compensation the learned Tribunal was required to take into consideration the salary payable i.e. Rs. 18,000/- (Rupees eighteen thousand only) per month, in addition Rs. 2,160/- (Rupees two thousand one hundred and sixty only) per month was required to be added to the said salary, as it was a benefit which was to be encashed by the deceased later in time. The learned counsel however, admitted that a sum of Rs. 18,00/- (Rupees one thousand and eight hundred only) per month was required to be deducted towards tax in view of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Indira Srivastava and others 2008 ACJ 614, wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “ 9. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the F.A.O. No. 4402 of 2007 7 employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased : "Basic : 63,400 Conveyance allowance : 12,000 Rent co. lease : 49,200 Bonus (35 per cent of basic) : 21,840__ Total : 1,45,440___ In addition to above, his other entitlements were : Con. to PF 10% Basic Rs. 6,240 p.a. LTA reimbursement Rs. 7,000 p.a. Medical reimbursement Rs. 6,000 p.a. Superannuation 15 per cent basic Rs. 9,360 p.a. Gratuity Cont.5.34 per cent of Basic Rs. 3,332 p.a. Medical Policy-self and family Rs. 55,000 p.a. Education Scholarship at the rate of Rs.500 payable to his two children directly. Rs.12,000 p.a. 10. There are three basic features in the aforementioned statement which require our consideration : 1. Reimbursement of rent would be equivalent to HRA; F.A.O. No. 4402 of 2007 8 2. Bonus is payable as a part of salary; and 3. Contribution to the Provident Fund.” On consideration, I find force in the contention raised by the learned counsel for the appellants. The learned Tribunal was required to take into consideration the salary of the deceased to be Rs. 18,000/- (Rupees eighteen thousand only) per month and a sum of Rs. 2,160/- (Rupees two thousand one hundred and sixty only) per month was required to be added to assessed income of the deceased. However, a sum of Rs. 18,00/-(Rupees one thousand and eight hundred only) per month, was to be deducted as tax, which the deceased was paying and thereafter 1/3rd amount was required to be deducted towards his personal expenses. Tthe dependency, therefore, came out to Rs. 12,240/- (Rupees twelve thousand two hundred and forty only) per month. The claimants, therefore, were entitled to a sum of Rs. 23,50,080/- (Rupees twenty three lac fifty thousand and eighty only) as compensation on account of death of Ajay Pal Maggan. In addition, the grant of Rs. 2,000/- (Rupees two thousand only) for funeral expenses, Rs. 2,500/- (Rupees two thousand and five hundred only) for loss of estate and Rs. 5,000/- (Rupees five thousand only) towards loss of consortium is upheld. The claimants are, thus, held entitled to Rs. 23,50,080/- (Rupees twenty three lac fifty thousand and eighty only) In addition, the appellants shall also be entitled to interest @ 6% per annum on the enhanced amount of compensation from the date of filing of the claim petition till its realization. Out of the enhanced amount Rs. 1,00,000/- (Rupees one lac only) each shall be paid to the minors, which shall be deposited in a fixed deposit in the name of minors to be encashed on F.A.O. No. 4402 of 2007 9 attaining majority. The balance enhanced amount be paid to the widow namely Sangeet Maghan. This appeal is accordingly, disposed of by enhancing the compensation payable to the claimants to Rs. 23,59,580/- (Rupees twenty three lac fifty nine thousand five hundred and eighty only) along with interest @ 6% per annum on the enhanced amount of compensation from the date of filing of the claim petition till its realization. No costs. 25.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE