IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3303 of 2009 (O&M) Date of decision:24 .08.2010 Kanta Devi ....Appellant versus Jag Jeevan Singh and others ...Respondents II. FAO No.3956 of 2009 (O&M) Renu and others ....Appellants versus Jag Jeevan Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Jai Bhagwan Sharma, Advocate, for the appellant(s). Mr. Ravinder Arora, Advocate, and Mr. Vivek Singal, Advocate, for the Insurance Company. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The above two appeals arise out of the same accident. FAO No.3303 of 2009 is an appeal by Smt.Kanta Devi seeking for enhancement of compensation. In her application for injuries filed in MACT No.1 of 2007, the Tribunal had awarded Rs.72,000/- for injuries FAO No.3303 of 2009 (O&M) - 2 - suffered by her in the accident. FAO No.3956 of 2009 is at the instance of Renu and others, seeking for enhancement of compensation awarded to them for the death of the 1st claimant-Ram Partap where the Tribunal had awarded a compensation of Rs.13,67,872/-. 2. In the claim petition filed by Kanta Devi, the contention was that she was travelling along with her son Ram Partap in a maruti car and when it reached near the petrol pump in the area of Village Dhanori Kalan, the insurer's jeep, which was driven by Jag Jeeven Singh, dashed against the maruti car due to which her son sustained head injuries and the claimant had suffered fracture at upper tibia right and the car had also been badly damaged. Ram Partap had been taken to the hospital at Ludhiana where he succumbed to injuries after four days on 29.10.2006. The maruti car was owned by Kanta Devi's yet another son namely Ashok Kumar and his wife Pushpa, both of them had been impleaded as respondents 4 and 5. The complainant would contend that the owner of the jeep which was the offending vehicle, was politically influential, who ensured that no FIR has been registered against the driver of the jeep and the statement which was recorded in the DDR was made to appear as though that the driver of the maruti car alone had been responsible for the accident. At the trial, Kanta Devi-the claimant had admitted that there was slight fog at the time of the accident as if to admit that the visibility was partially not good. It was also suggested to her that she had herself given a statement to the police that the accident took place when there was fog and when the visibility was poor. The Tribunal held that although there was an eye-witness account through the injured person, FAO No.3303 of 2009 (O&M) - 3 - the driver or the owner of the offending jeep did not bother to appear in the witness box and made an adverse inference about their non- examination and held that the driver of the jeep alone had been responsible for the accident. It also referred to some decisions of this Court and other Courts that mere non-registration of the FIR was immaterial for ascertaining the respective negligence of the drivers. I shall not fault the line of reasoning adopted by the Tribunal and I shall retain the same. 3. As regards the claim for compensation, it was brought out through the evidence of doctor that a steel plate had been implanted in her right leg and she remained admitted in the hospital from 25.10.2006 to 29.10.2006. It appears that she had taken further treatment for nearly a year at Chawla Nursing Home, Hisar and Bal Dharmarth Hospital, Jind, for a period of one year. Dr. M.L.Kocher, who was examined as PW5, had examined her and had assessed her disability at 15%. The Tribunal, while awarding compensation for the injuries suffered by Kanta Devi relied on Ex.P41 to P61 amounting to Rs.31,349/- as proof towards medical expenses and it rounded it off to Rs.32,000/-. It provided for a special diet for Rs.5,000/-, for transportation from Dhuri to Ludhiana and then to Jind and Hisar and the Tribunal held that she was entitled to Rs.5,000/-. Here I would allow for additional award for another Rs.20,000/- for transportation, having regard to the prolonged treatment of more than one year at various hospitals. As regards the disability, the Tribunal took the compensation to be Rs.30,000/- and arrived at a total amount of Rs.72,000/-. FAO No.3303 of 2009 (O&M) - 4 - 4. In appeal, it is contended by the appellant that the compensation for loss due to disability, Tribunal must have assessed at Rs.1 lakh. It is contended that she is a 55 years old lady and due to permanent disability, she cannot walk properly without the assistance of an attendant, she is unable to do the work as a householder and she is not also able to assist her husband in his earnings. I have not the benefit of knowing as what was the nature of assistance which she was giving to her husband in his business but I am definitely prepared to consider a situation that a householder's services must also be duly considered in monetary terms. I would take the value of her services as a householder at Rs.3,000/- per month and for 15% disability, which she had obtained with an implant in her leg, I would factor the loss of earning capacity also at the same percentage, who may have to be ambulatory in the house to carry on the household chores. She was 55 years old and I would adopt a multiplier of 8 for the loss of her contribution. The amount of compensation under this head for loss of contribution to her family as Rs.43,200/- (i.e. Rs.3,000 x 12 x 15/100 x 8=43,200/-). This amount along with the additional amount which I have assessed for transportation, shall add to to Rs.63,200/-, which shall be payable with interest at 6% from the date of the petition till the date of payment against the Insurance Company. 5. As regards the claim for enhancement of compensation arising out of death of the husband of the 1st claimant, the Tribunal has assessed the compensation by taking into consideration that the deceased Ram Partap was running a shop in the sale of sarees being sole proprietor FAO No.3303 of 2009 (O&M) - 5 - of M/s Utsav Saree Centre, Bank Road, Jind and earning an income of Rs.15,000/- per month. Income tax returns had been filed to show that his annual income is Rs.1,20,404.25 which the Tribunal took to be Rs.1,20,000/- per annum. The Tribunal provided for a 1/3rd deduction and took the annual dependency to be Rs.79,992/-. It adopted a multiplier of 16 and arrived at a compensation of Rs.12,79,872/-. The contention in appeal by the appellant is that he would have earned more over a period of time and the income ought not to have been taken merely as Rs.1,20,000/-. One thing that has to be seen is that the business is still intact and what is necessary to be seen is only loss of managerial skill of the deceased person. Unlike a provision for future increase in salary for a salaried persons, while assessing the loss due to a death of a person having a business, the Tribunal could have normally taken only the loss for the managerial skill of the proprietor of the business. It could not be reckoned by taking the entire income from the business as now lost. The sarees shop that the deceased had, must continue to exist and the loss must be taken to be the salary that must be paid to a person to take care of the business. It is likely that business income has fallen after the death of the claimant’s husband. The Tribunal, however, had taken the entire income earned by the husband to be the loss and provided for the compensation. This, in my view, would more than offset the increase in income which would have been possible over a period of time. The deceased had left behind one minor child of 22 days at the time when he died. The boy has still a long way to get into the shoes of his father to manage the business. I therefore take the business income to have been FAO No.3303 of 2009 (O&M) - 6 - completely lost for the time being and afford to the claimants the entire income as the deceased was found to be earning. In actual fact, the business exists and I would take the increased prospect of income to cover the cost of expenses for hiring the services of a manager. The extent of dependence by the family and the multiplier have been correctly adopted. The Tribunal also provided Rs.10,000/- and Rs.5,000/- towards loss of consortium and loss to estate respectively. It has also provided for transportation for Rs.5,000/- and added Rs.67,758/- towards the medical expenses and rounded it off to Rs.68,000/-. Every head of claim that is required to be addressed has been taken. The amount of Rs.13,67,872/- is, in my view, appropriate and there is no requirement to intervene to provide for any enhancement. The appeal for enhancement is dismissed. (K.KANNAN) JUDGE 24.08.2010 sanjeev