IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.271 of 2009 Cross Objections No.347/2009 Date of Decision : November 24, 2011 H.R.T.C. & Anr. …Appellants. Versus: Saroj & others. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants : Mr. Jagdish Thakur, vice Mr. N. K. Thakur, Advocate. For respondents 1to4 : Mr. G. R. Palsra, Advocate. For respondent 5to9 : Mr. Varun Rana, Advocate. For respondent 11 : Mr. Vijay Chaudhary, Advocate. For respondent 12 : Mr. Lalit Sharma, Advocate. SANJAY KAROL, JUDGE (Oral). H. R.T.C., owner of the bus is the appellant herein. 2. On 27.6.2002, scooter No.HP34-1723, owned by Sh. Mast Ram (original respondent No.4) being driven by Sh. Naresh Kumar (original respondent No.5), on which Sh. Naranjan Dass (predecessor-in-interest of the original claimant) was sitting as a pillion rider met with an accident with bus bearing No.HP12-2108 near Ner Chowk, Distt. Mandi, H.P.. Bus was owned by appellant HRTC and driven by original respondent No.3 Sh.Shiv Kumar (now represented by his successor-in-interest). Both S/Sh. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Naranjan Dass and Naresh Kumar sustained injuries, however Sh. Naranjan Dass immediately succumbed to the same. 3. Sh. Naresh Kumar filed Claim Petition No.86/2002 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), which was decided by the Motor Accidents Claims Tribunal, Mandi, in terms of award dated 2.11.2004. Tribunal partly allowed the claim petition by awarding damages in favour of the claimant payable both by the owner and driver of the bus. However Sh. Naresh Kumar was also held to have contributed to the accident. Aggrieved thereof Sh. Naresh Kumar filed FAO No. 189/2005 titled as Naresh Kumar @ Narayan vs. MD HRTC & Ors. before this Court and findings of contributory negligence qua Sh. Naresh Kumar stood reversed and also quantum of compensation stands enhanced. Said appeal stands decided in terms of judgment dated 24.11.2011. 4. Legal heirs of Sh. Naranjan Dass, original claimant independently filed claim petition under section 166 of the Act being No.74/2002 (5 of 2005), which stands decided by Motor Accidents Claims Tribunal in terms of impugned award dated 31.12.2008. The Tribunal has awarded compensation of Rs.15,70,000/- at the rate of 7.5% per annum in favour of the claimants. Operative portion thereof reads as under:- “25. In view of the findings on the above issues, the petition is hereby allowed with costs and the respondents No.1 to 3 are vicariously liable to pay the amount of compensation to the petitioners and the petitioners are awarded total compensation of Rs.15,70,000/- with interest at the rate of 7.5% per annum from the date of filing of the petition. This amount is inclusive of the amount paid to the petitioners Under Section 140 of the Motor Vehicle Act. The 3 aforesaid amount is awarded to the petitioners in the following manner: Petitioner No.1 : 20% Petitioner No.2 : 20% Petitioner No.3 : 30% Petitioner No.4 : 30% 26. Out of the amount deposited 50% share of petitioner Nos.1 and 2 shall be released in their favour and the remaining amount of petitioners No.1 and 2 be deposited in a Nationalized bank. The shares of minors petitioners Nos.3 and 4 shall also be deposited in some nationalized bank for the period till they attained the age of majority. Memo of cost be prepared. The file after completion be consigned to Record Room.” 5. It is not in dispute that Sh. Naranjan Dass was sitting as a pillion rider at the time of occurrence of the accident and as a result of the injuries sustained by him, he expired. 6. Firstly, I shall deal with the issue of contributory negligence. Award dated 2.11.2004 (Ext.R1) passed by Motor Accidents Claims Tribunal, Mandi in Claim Petition No. 86 of 2002 titled as Naresh Kumar vs. M.D. H.R.T.C. & Ors., wherein it is held that drivers of both the vehicles were responsible for the accident, has not been relied upon by the Tribunal while passing the impugned award. In any event, the said award cannot be relied upon for the reason that such findings now stand reversed by this Court in FAO No.189/2005 titled as Naresh Kumar @ Narayan vs. M.D. HRTC & Ors.. In support of their plea of contributory negligence, in the instant case, appellants have not led any evidence. Drivers and the owners of the respective vehicles have examined three witnesses i.e. Sh. Shiv Kumar (RW-1), Sh. Bhagi Rath (RW-2) and Sh. 4 Naresh Kumar (RW-3). Sh. Naresh Kumar has categorically deposed that fault was that of the driver of the bus i.e. Shiv Kumar. His statement is duly corroborated by the version of RW-2 who in fact was the author of the FIR which records the first version that driver of the bus was negligent. A conjoint reading of testimonies of these two witnesses thus belies the version given by Sh. Shiv Kumar to the effect that Sh. Naresh Kumar was negligent in driving the vehicle at the time of the accident. Hence plea of contributory negligence, in my considered view, has been rightly dealt with by the learned Tribunal below. 7. Claimants have also filed cross objections seeking enhancement of compensation. 8. Insofar as amount of compensation is concerned, it is not in dispute that deceased was working as a Sr. Assistant with HPSEB. His salary certificate (Ext.PB) shows that he was drawing a salary of Rs.15,000/- per month. It also cannot be disputed that claimants are daughters and minor sons of the deceased. Their right and entitlement to receive compensation is not in dispute. It is also not in dispute that Sh. Naranjan Dass was 48 years of age at the time of his death which occurred immediately after the accident. The Tribunal, after carrying out deduction of 1/3rd from the monthly income, by applying multiplier of 13, in my view, correctly determined compensation of Rs.15,60,000/-. The Tribunal, in my considered view, has rightly applied the principles of law laid down by the Apex Court in Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121. Noticeably, the Tribunal has also awarded Rs.10,000/- as conventional charges. This amount has been awarded after considering the evidence led by the parties. 5 9. Having minutely perused the record, I find that there is nothing on record to justify further increase in the amount of compensation already awarded by the Tribunal. Hence, I find no ground to interfere with the impugned award. The appeal and the cross-objections are accordingly dismissed. ( Sanjay Karol ), Judge. November 24, 2011. (rana)