FAO No. 827 of 1989 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 827 of 1989 (O&M) Date of decision : 10.5.2010 ... Smt. Neena Verma and others ................Appellants vs. Siri Lal and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: None for the appellants Sh. Ravinder Arora, Advocate and Sh. Neeraj Khanna, Advocate for the Insurance company -respondent No.3. ... K.C. Puri, J. (Oral) This is an appeal directed by widow, two minor sons and mother of deceased Ramesh Kumar Verma, claiming compensation of an amount of Rs. 6 lacs in respect of death of Ramesh Kumar Verma, in a motor vehicular accident. As per allegation in the claim petition, on 4.1.1988 at about 10.30 A.M. deceased Ramesh Kumar Verma was coming on scooter No. DHK 7476 towards his house situated in Sector 3, Housing Board Colony, Ballabgarh, when all of sudden a truck bearing no. HRC 4785 being driven by respondent No.1, rashly, negligently, carelessly FAO No. 827 of 1989 -2- and recklessly came from the side of village Sihi and was going towards Sector 7 and after respondent No.1 lost the control of the offending truck, he struck the same with the scooter of the deceased as a result of which he fell down and sustained multiple grievous injuries. A report was lodged by Brahm Singh s/o Amar Singh r/o Sihi and a case was registered bearing FIR No. 11 dated 4.1.1988 under Sections 279/337 IPC. Ramesh Kumar Verma succumbed to his injuries later on. Respondents No. 1 and 2 filed written reply, taking preliminary objections that claim petition is vague and the petitioners are not the legal heirs of the deceased. All the other averments made in the claim petition were denied, except that respondent no.1 is the driver, respondent no.2 is the registered owner and respondent No.3 is the Insurer of truck No. HRC 4785. Respondent No.3 filed separate written statement taking preliminary objection that accident has taken place due to rash and negligent driving of scooter No. DHK 7476 by the deceased. Plea that driver of the truck as well as scooterist were not holding a valid driving licence , was also taken. The Tribunal framed the following issues:- 1. Whether Ramesh Kumar Verma died in a motor vehicular accident due to the rash negligent and careless driving of truck No. HRC 4785 duly driven by respondent No.1.? 2. If issue No. 1 is proved, to what amount of compensation the petitioners are entitled to and against whom? 3. Relief. FAO No. 827 of 1989 -3- Learned Tribunal after appreciating the evidence of PW-3 Brahm Singh returned finding on issue No.1 partly in favour of the claimants and partly in favour of the respondents. It is held that both the deceased, as well as, driver of the truck i.e. respondent No.1 are negligent to the extent of 50% each. While deciding issue No.2, the amount of compensation was assessed as Rs. 3 lacs. However, on account of contributory negligence, the amount granted to the claimants was Rs.1,50,000/-. Feeling dissatisfied with the above said award, the claimants have preferred the present appeal for enhancement of compensation and for returning the finding on issue No.1 only in favour of the claimant-appellants. The Insurance company has preferred the cross-objection, wherein prayer has been made for dismissal of the claim petition by holding that accident has taken place due to rash and negligent driving of scooter by deceased. In this case, Justice Mahesh Grover, represented the appellants and since he has been elevated to the Bench of this Court, so notice was issued to the appellants. A report has been received that appellants are not residing at the given address. So, in these circumstances, since the appeal relates to the year 1989, no option is left, but to decide the appeal on merits. I have heard counsel for the Insurance company and have also gone through the record of the case. Issue No.1 is the material issue of this case. The Tribunal, after going through the statement of sole eye witness Brahm Singh, FAO No. 827 of 1989 -4- came to the conclusion that accident has taken place due to negligence of deceased, as well as, driver of the truck i.e. respondent No.1. Exhibit P-3 is the FIR recorded at the instance of Brahm Singh PW-3, in which he has mentioned that back side of the truck struck against the scooter resulting into the accident. However, while appearing in the witness box, he has stated that truck was coming from the side of Sector 3, while the scooter emerged probably from a by-lane and the scooter hit the truck. The scooter hit the truck on the rear side. At the time of the accident, the truck was in motion. The scooter struck the truck a few paces after the crossing. He has further stated that a wheat bag was lying in the front portion of the scooter and on that account he could not turn the scooter properly. Learned Tribunal, after appraising his statement and while of the circumstances, reached to the conclusion that accident has taken place due to the negligence of both the drivers i.e. deceased as well as, respondent No.1. The Tribunal has held that truck driver was driving the truck at a very high speed and no horn was blown by the truck driver. So, in these circumstances, the finding of the Tribunal on issue No.1 does not call for any interference and as such the same stands upheld. Now, reverting to the quantum of compensation, the Tribunal has taken the income of the deceased as Rs.2,352/- per month. 1/3rd amount has been deducted on account of personal expenses of the deceased and Rs.1,568/- has been taken as monthly dependency. The multiplier of 16 has been applied taking the age of the deceased as 36-37 years. Exhibit P-1 is the certificate regarding last drawn salary. FAO No. 827 of 1989 -5- As per said certificate, the income of the deceased was as under:- Basic pay - Rs.980.00 D.A. - Rs.660.00 H.R.A. - Rs.392.00 Conveyance allowance- Rs.125.00 J.M. Allowance - Rs. 95.00 _____________ Total Rs.2252.00 _____________ Others Bonus - Rs.320.00 LTA - Rs.150.00 Medical reimbursement- Rs.100.00 _______________ Total Rs.2822.00 _______________ I am of the view that conveyance allowance of Rs.125.00 has to be deducted, which is conveyance charges for going to the office. So, the net income comes to Rs.2,697/- per month. The deceased was in a permanent job. So, in view of authority reported as Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009(3) RCR (Civil) 77, another sum of Rs.1,348/- being 50% of the income stands added for his future prospectus. So, the income of the deceased is calculated Rs.4,045/- , say Rs.4,000/- per month. There are four dependents in this case. So, as per Smt. Sarla Verma's case (Supra), by applying the cut of 1/4th in respect of amount spent on personal expenses of the deceased, the dependency is calculated as Rs.3,000/- per month. The yearly dependency comes to Rs.36,000/- (3,000 X 12). The multiplier FAO No. 827 of 1989 -6- applicable for the age group of 36 to 40 as per Smt. Sarla Verma's case (Supra), is 15. So, by applying that multiplier, the amount comes to Rs.5,40,000/- ( 36,000 X 15 ). So, by applying the cut of ½, the amount comes to Rs.2,70,000/-. Out of the said amount of Rs.2,70,000/- the liability of the Insurance company shall be to the extent of Rs.1,50,000/- and the remaining amount shall be paid by the owner and driver. So, the claimants are held entitled to claim Rs.1,20,000/- more in addition to the amount awarded by the Tribunal. The enhanced amount shall carry interest @ 7% per annum from the date of filing of appeal till realisation. The appeal stands disposed of. ( K.C. Puri ) 10.5.2010 Judge chugh