F.A.O. No. 2961 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. F.A.O. No. 2961 of 2010 Date of Decision: December 8th, 2011 Narinder Kaur and others .... Appellants Versus Pawan Kumar and others .... Respondents 2. F.A.O. No. 2962 of 2010 Date of Decision: December 8th, 2011 Saravjit Kaur and others .... Appellants Versus Pawan Kumar and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Ms. Ivneet Singh Pabla , Advocate, for the appellants. Mr. Vikram Singh Prabhakar, Advocate, for Mr. Jagdish Manchanda, Advocate. for respondents No. 1 to 2. Ms. Lovejinder Kuar, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. The claimants in the two appeals are before me F.A.O. No. 2961 of 2010 2 .. seeking enhancement of compensation awarded to them by learned Motor Accidents Claims Tribunal, Kurukshetra (for short, "the Tribunal") by way of the common award dated 11.11.2009. In FAO No. 2961 of 2010 brought by Narinder Kaur and others, the Tribunal has awarded compensation in a sum of ` 4,41,000/- on the death of Suchha Singh and in FAO No. 2962 of 2010 brought by Sarabjit Singh and others, a sum of ` 7,40,000/- has been awarded as compensation on the death of Dilbag Singh, by the Tribunal. The appellants have brought the two appeals for enhancement of this compensation. The claim petitions have been brought by the appellants under the provisions of section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”). The facts necessary for decision of these appeals is taken mainly from FAO No. 2961 of 2010 and the same are as under: On 16.7.2008 at about 8.15 p.m., Suchha Singh and Dilbag Singh were returning to Kurukshetra from village Kalnthla Khurd on a motorcycle bearing registration No. HR-07J-0795. Dilbag Singh was driving the same and Suchha Singh was riding its pillion. They were followed by their relative, Mahinder Singh on a separate motorcycle bearing registration No. HR-07J-8608. When they were opposite a card board factory near Canal Colony on Dhand - Kurukshetra road, a three wheeler bearing registration No. HR-5A-6586 came from their opposite side at a very high speed. It was being driven in negligent manner. The said three wheeler came to the wrong side of the road and had hit the motorcycle driven by Dilbag Singh. The motorcycle was F.A.O. No. 2961 of 2010 3 .. dragged to some distance by the three wheeler. Dilbag Singh and Suchha Singh fell on the road and suffered multiple injuries. They were taken to L.N.J.P. Hopsital, Kurukshetra where Dilbag Singh was declared as dead. However, Suchha Singh was referred to P.G.I., Chandigarh and he also succumbed to his injuries on the way to PGI, Chandigarh. Suchha Singh is claimed to be aged 46 years at the time of death. He is claimed to have been an agriculturist, who was running a dairy and was earning a sum of ` 2.50 lakhs per annum. On the other hand, Dilbag Singh (deceased) is claimed to be aged 32 years at the time of his death. He is claimed to have been employed as a driver at a monthly salary of ` 8,740/- with Larsen and Toubro Limited, Jalandhar. The claimants in both the cases had sought compensation in a sum of ` ten lakhs each. Respondents resisted the claim petitions. Respondent No.1 and 2 have denied any cause of action with the claimants to file and maintain the claim petitions. It is denied that the accident was caused by respondent No.1 while driving the three wheeler. Claiming that the three wheeler was insured with respondent No.3, it was prayed that the amount of compensation, if any, be recovered from the insurance company. Respondent No.3 has even denied any accident to have taken place involving the three wheeler in question. The claim petitions are claimed to have been filed in collusion with F.A.O. No. 2961 of 2010 4 .. respondents No.1 and 2 in order to grab compensation. It is further averred that the insured had violated the provisions of the Act as well as terms of the insurance policy. Respondent No.1 is denied to have been holding a valid and effective driving licence to drive the vehicle. It has been averred that the Tribunal had no jurisdiction to entertain the claim petitions. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether the motor vehicle accident dated 16.7.2008 is an outcome of rash and negligent driving of three wheeler No. HR-55A-6586 by Pawan Kumar respondent no.1? OPP 2. Whether the petitioners Saravjit Kaur etc. in the main case are entitled to compensation on account of death of Dilbag Singh in the aforesaid accident? If so, in what amount and from whom? OPP 3. Whether the petitioners Narinder Kaur etc. in the connected case are entitled to compensation on account of death of Suchha Singh in the aforesaid accident? If so, in what amount and from whom? OPP. 4. Whether the driver of the aforesaid vehicle was not having valid driving licence at the time of alleged accident? OPR-3 5. Whether the insurance company is not liable F.A.O. No. 2961 of 2010 5 .. on the grounds taken in the preliminary objections and additional pleas? OPR-3 6. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal allowed the claim petitions and has awarded compensation as stated above, vide the impugned award. Dissatisfied with the quantum of compensation, the claimants have brought these appeals I have heard Ms. Ivneet Singh Pabla , learned counsel for the appellants, Mr. Vikram Singh Prabhakar, learned counsel for respondents No. 1 to 2 and Ms. Lovejinder Kuar, learned counsel respondent No.3-Insurance company. I have gone through the record carefully. Learned counsel for the appellants has submitted that against the claim of income of ` 2.50 lakhs per annum, claimed for Suchha Singh, who was owner of 10 acres of agricultural land, learned Tribunal has taken his income at ` 3,600/- per month. According to her, Ex.P2, is a copy of jamabandi showing the agricultural holding of Suchha Singh. She has, however, admitted that the deceased had been aged 47 years and suitable multiplier of 13 has been adopted by learned Tribunal. According to her, the income of the deceased deserves to be enhanced and, consequently, compensation is also required to be increased. In the other case, learned counsel for the appellants F.A.O. No. 2961 of 2010 6 .. has submitted that Dilbag Singh had been aged 32 years. According to her, he was in service and the claimants had examined Sh. Ram Lubhaya Joshi, Administrative Officer, Larsen and Toubro Limited, Jalandhar as PW-1, who had stated that Dilbag Singh was working as driver in their company from July 2000 to July 2008 and had drawn a salary of ` 8740/- for the month of May, 2008. According to her, learned Tribunal has not believed the overtime wages as part of the salary and has wrongly taken the income of the deceased at ` 5,000/- per month. She has claimed that this amount should also be increased and, consequently, the compensation requires to be enhanced. Learned counsel for respondent no.3, the insurer, has submitted that learned Tribunal has rightly taken the income of the deceased in both the cases. According to her, the overtime dues are not regular feature and they cannot be deemed to be a part of the income of the deceased Dilbag Singh. She has submitted that the Tribunal has, thus, rightly assessed the compensation in both the cases. It is proved on record by a copy of jamabandi (Ex.P2) that Suchha Singh was owner of 10 acres of land. A land owner having 10 acres of land cannot be said to have income equivalent to that of a daily wager. However, the entire income raised by a person from 10 acres of land cannot be deemed to be the income of the deceased. The income of such a person, lost in the death, would be the amount equivalent to the work F.A.O. No. 2961 of 2010 7 .. done by the land owner on the land as actual cultivator and as a supervisor. The land remains there with the dependents even after the death of the land owner and even if the land is given for cultivation on contract basis or on any other term, it can still give good income. So, the increase in the income of the deceased, Suchha Singh, cannot be allowed to a very large extent. The income of the deceased can, therefore, be taken to be ` 4500/- per month. Applying a cut of 1/4th, adopted by learned Tribunal, regarding which there is no objection on the part of learned counsel for the parties, the monthly dependency comes to ` 3,375/- and the annual dependency comes to ` 40,500/-. The multiplier adopted by learned Tribunal of 13 is the appropriate multiplier for this case and multiplying the annual dependency with 13, the amount lost by the claimants in the death of Suchha Singh comes to ` 5,26,500/-. Adding to it a sum of ` 20,000/- allowed even by the Tribunal for loss of consortium, loss of estate and funeral expenses, the compensation payable to the claimants Narinder Kaur and others in FAO No. 2961 of 2010, comes to ` 5,46,500/-. In the other case, the Tribunal has found the deceased, Dilbag Singh to have getting ` 3,877/- as basic wages. According to learned Tribunal, the amount of ` 4,864/- is the overtime wages and as the same is not a regular feature, by making a guess-work, the income of the deceased is taken as ` 5,000/- per month. F.A.O. No. 2961 of 2010 8 .. Though the income of ` 8740/- of the deceased, Dilbag Singh, as stated by Ram Lubhaya Joshi (PW-1) is for the month of May, 2008, yet the same cannot be taken to be incorrect for want of wage slip of the month of June, 2008. It is true that overtime wages could vary with month to month, but the difference cannot be that much, which may bring the average income to ` 5,000/- per month. If overtime wages had been ` 4,864/- in the month of May, it could be ` 1000/- or so less in other months. So, the average income of the deceased cannot be taken below ` 6,000/- per month. Taking the income of the deceased, Dilbag Singh, at ` 6,000/- per month and applying a cut of 1/4th, I find the monthly dependency of the claimants in FAO No. 2962 of 2010 at ` 4,500/- and the annual dependency at ` 54,000/-. The multiplier of 16 has been rightly adopted by the Tribunal in this case as the deceased had been 32 years of age. Multiplying the annual dependency of the claimants with 16, the amount found to have been lost in the death of Dilbag Singh by his dependents, comes to ` 8,64,000/-. Adding to it a sum of ` 20,000/- for loss of consortium, loss of estate and funeral expenses, the claimants - Sarabjit Kaur and others are found entitled to ` 8,84,000/- as compensation on the death of Dilbag Singh. Consequently, the appeals are allowed enhancing the compensation from `4,41,000/- to ` 5,46,500/- in FAO No. 2961 of 2010 and from ` 7,40,000/- to ` 8,84,000/- in FAO No. 2962 of 2010, with other terms regarding rate of interest etc. F.A.O. No. 2961 of 2010 9 .. appearing in the award of the Tribunal remaining the same. (VIJENDER SINGH MALIK) JUDGE December 8th, 2011 som