F.A.O. No.5616 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.5616 of 2010 Date of Decision: November 17th, 2011 Smt. Kailash Rani and others .... Appellants Versus Sohan Lal 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 Mr. J.S.Mehndiratta, Advocate, for the appellants. Mr. Pardeep Goyal, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. Smt. Kailash Rani and others claiming themselves to be dependents of Manohar Lal (deceased) had brought a claim petition under the provisions of section 166 of the Motor Vehicles Act, 1988 seeking compensation in a sum of ` 10,00,000/- on the death of Manohar Lal in a road side accident that occurred during the night intervening 10th and 11th July, 2007. The claim petition has been allowed vide award dated 7.1.2010 by the Motor Accidents Claims Tribunal, Jagadhri (for short, "the Tribunal") vide which a sum of Rs. 2,50,000/- has been awarded in favour of the claimants on the death of F.A.O. No.5616 of 2010 2 Manohar Lal. The present appeal has been brought by the claimants for enhancement of the compensation. Their case is as under: During the night intervening 10th and 11th July, 2007, Manohar Lal alongwith his son Madan Gopal alias Madan Lal was returning from Rajasthan after unloading his four wheeler bearing registration No. HR-58-7062. The four wheeler was driven by his driver Harbans Lal at a very moderate speed and on his correct side of the road. At about 12.30 AM, the four wheeler was near Delhi Public School, Ambala - Jagadhri road in the area of village Bhamboli. A tractor bearing registration No.HRE-7573, with trolley attached thereto, was parked in the middle of the road without any parking indications. The same could not be noticed from a distance and when noticed, the driver of the four wheeler immediately applied brakes but the vehicle could not be stopped before hitting the tractor-trolley. Manohar Lal suffered grievous injuries in the said accident and he was shifted by a police Gypsy to Redix Hospital at village Manka Manki where Manohar Lal succumbed to his injuries. Since the appeal is for enhancement of compensation, it is necessary to notice the facts that the deceased is claimed to be 50 years old and earning ` 10,000/- per month by plying the four wheeler. The claimants are the widow and her three children. The claim petition was resisted by owner and driver of the tractor as well as the insurer on various grounds reflected in F.A.O. No.5616 of 2010 3 the issues framed in this case. The averments of ownership of the four wheeler by the deceased as well as about his age and income are also denied by the respondents. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether the accident in question resulting into the death of Manohar Lal was the direct result of rash driving on the part of respondent No.1, Sohan Lal, who was driving the tractor trolley bearing registration No.HRE-7573?OPP 2. If issue no.1 is proved, to what compensation amount are the petitioners entitled and from whom?OPP 3. Whether the tractor trolley in question is not a goods carriage vehicle and does not cover the responsibility of the answering respondent?OPR-3 4. Whether the tractor vehicle was being plied in contravention of the terms and conditions of the insurance policy and the company is absolved of its liability?OPR-3 5. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 2,50,000/- to the claimants vide the impugned award. Dissatisfied with the said amount, the claimants have brought this appeal. I have heard Mr. J.S.Mehndiratta, learned counsel for the appellants and Mr. Pardeep Goyal, learned counsel for F.A.O. No.5616 of 2010 4 respondent No.3-Insurance Company and have gone through the record carefully. Learned counsel for the appellants has challenged the approach of learned Tribunal in taking the income of the deceased at ` 3,000/- per month. According to him, the deceased was owner of a four wheeler and his income could not be taken as ` 3,000/- per month. He has further submitted that the dependency has not been assessed as per the decision of Hon'ble Supreme Court of India in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77 where it is laid down that 1/4th cut has to be applied to assess the dependency of the claimants in case the number of dependent family members is from four to six. He has lastly submitted that the multiplier adopted by learned Tribunal is also not in consonance with the ratio of Smt. Sarla Verma's case (supra). According to him, the Tribunal adopted the multiplier of 10 to assess the compensation, while it should have been 15 as per Smt. Sarla Verma's case (supra) because the deceased was 50 years old at the time of his death. Besides defending the award of learned Tribunal on the income of the deceased, learned counsel for respondent no.3 has not disputed the submission of learned counsel for the appellants on the method of assessing the dependency of the claimants as well as the multiplier. It is argued by learned counsel for the insurer that there is no evidence on the record to prove that Manohar Lal was owner of the four wheeler in F.A.O. No.5616 of 2010 5 which he was travelling. He has submitted that in the absence of any evidence to prove his ownership of the four wheeler, he was travelling in, the income of the deceased was rightly assessed at ` 3,000/- per month. Though, the accident occurred in July, 2007, yet the income of ` 3,000/- per month even for a daily wage labourer was less at that time. Learned Tribunal has not supported his finding about the income of the deceased with any material on the record. Even in the year 2007, the income of a daily wager could not have been assessed below ` 4,000/-. However, the amount cannot be assessed over and above a sum of ` 4,000/- per month because there is no evidence to prove that the deceased owned the four wheeler, he was travelling in. Therefore, I assess the income of the deceased as ` 4,000/- per month. It has been laid down in Smt. Sarla Verma's case (supra) that in case the dependent family members of the deceased were between four to six, the deduction from the income of the deceased should be 1/4th to assess the dependency of the claimants. The claimants in the appeal before me are Smt. Kailash Rani, the widow of the deceased and his three children (two daughters and one son). Therefore, a cut of 1/4th is to be applied in this case and accordingly, the monthly dependency of the claimants comes to ` 3,000/-. Multiplying the same with 12, the annual dependency of the claimants comes to ` 36,000/- and as Manohar Lal died at the F.A.O. No.5616 of 2010 6 age of 50 years, the multiplier of 13 is required to be adopted in this case as per Smt. Sarla Verma's case (supra). Multiplying the annual dependency of the claimants with 13, they are found to have lost a sum of ` 4,68,000/- in the death of Manohar Lal. The claimants/appellants are also entitled to a sum of ` 20,000/- for loss of consortium, loss of estate and funeral expenses as per Smt. Sarla Verma's case (supra). Therefore, the appellants are entitled to ` 4,88,000/- as compensation on the death of Manohar Lal. For the aforesaid reasons, the appeal succeeds and is allowed enhancing the compensation from ` 2,50,000/- to ` 4,88,000/-. The terms regarding apportionment and interest would remain the same as are there in the award of the Tribunal. (VIJENDER SINGH MALIK) JUDGE November 17th, 2011 som