IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.378 of 2004 Reserved on: 28.8.2008 Date of Decision : September 10, 2008 Anita Mahendru & others …Appellants. Versus: Kailash Verma & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Sunil Chauhan, Advocate For respondents 1 & 2 : Mr. Tek Chand Sharma, Advocate. For respondent No.3 : Ms. Sunita Sharma, Advocate. Sanjay Karol, J. The present appeal arises out of the impugned Award dated 1.4.2003 passed by the Motor Accident Claims Tribunal-I, Solan, H. P. in M. A. C. Petition No. 1-S/2 of 2002 titled as Anita Mahendru & Ors. vs. Kailash Verma & others, whereby a sum of Rs.2,96,000/- plus interest @ 9% has been directed to be paid as compensation to the appellants-claimants. Shri Brij Mohan, respondent No.2 was driving vehicle No.HP-07-3725 owned by Shri Kailash Verma, respondent No.1 which met with an accident on 4.11.2001 in which Shri Kailash 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Chand Mahendru died. F.I.R. No. 258/2001 was registered against the driver. The claimants being the legal heirs of deceased Shri Kailash Chand Mahendru filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) for the grant of compensation. Claimant No.1 is the wife, claimants No.2 & 3 are minor daughters and claimant No.4 is the mother of the deceased. On the pleadings of the parties, the Tribunal framed the following issues:- 1) Whether the deceased Shri Kailash Chand had died on account of rash and negligent driving by the respondent No.2 as alleged? OPP. 2) If issue No.1 is decided in favour of the petitioners whether the petitioners are entitled for compensation if so how much and from whom? OPP 3) Whether the respondent No.2 was not having valid and effective driving licence at the time of accident, if so its effect? OPR-3. 4) Whether the vehicle in question was being driven in contravention of Insurance Policy, if so its effect? OPR-3. 5) Relief. Issue No.1 was decided in the affirmative and it was held that Shri Kailash Chand Mahendru had died on account of rash and negligent driving of respondent No.2. With regard to issues No.3 & 4, it was held that it could not be proved that respondent No.2 was not having a valid and effective driving 3 licence at the time of accident and that the vehicle in question was being driven in contravention of the Insurance Policy. Since the vehicle was insured, therefore, respondent No.3, The National Insurance Company was held liable to pay compensation. On issue No.2, as against the claimants’ case that the deceased having retired as Naik from the Indian Army and drawing a pension of Rs.2000/- per month was also having an additional income of Rs.12,000/- per month, the Tribunal determined the income of the deceased to be Rs.3000/- and dependency at Rs.2000/- per month. Applying the multiplier of 12, a total sum of Rs.2,88,000/- was awarded on this account in addition to Rs.5000/- as consortium charges and Rs.3000/- as conventional amount. The claimants alone have filed the present appeal assailing the Award limited to issue No.2. The owner and the driver of the Insurance Company have not filed any appeal or cross-objections. I have heard learned counsel for the parties and also perused the record. The age of the deceased was 41 years is not in dispute. Smt. Anita Devi (PW-1), widow of the deceased has deposed that her husband was interior decorator. He had taken training from Faridkot (Punjab) when he was in the Army in 1989. She is getting family pension of approximately Rs.2,600/- per month. Though she has not placed on record any account of 4 income but has deposed that she visited the place of business of her husband and the entire machinery required for the work of interior decoration was there and the bills for the same stand proved on record. She has deposed that her husband had hired accommodation from Shri Rajinder Kumar at Manimajra, Chandigarh at a monthly rental of Rs.1500/- per month for the business. Her husband had purchased machinery from Shimla Machinery Store on 7.10.2000 amounting to Rs.54,432/- vide Bill Ext.PW-1/B. Her husband had undertaken the work as an Interior Decorator at Pankaj Hotel, Chandigarh for a total sum of Rs.80,000/- and he contributed Rs.10,000/- per month for the maintenance of the petitioners/claimants. She incurred an expenditure of Rs.20,000/- on the funeral and other expenses at the time of the death of her husband. Shri Chander Mohan (PW-3) has deposed that the deceased had purchased machinery from him and quotation thereof is Ext.PW-1/B. The machinery was purchased by taking loan from the Bhagat Bank, Solan. Shri Ashok Kumar (PW-4) has deposed that the deceased, engaged by him, was assisted by two carpenters and they completed the work within 22 days for which Rs.48,000/- was paid. Shri Rajinder Kumar (PW-5) has proved that Rs.3,000/- was received by him as rent for two months from the deceased for the rented premises at Manimajra, Chandigarh. 5 From the record, it is evident that the deceased had set up his independent business at Manimajra, Chandigarh and had invested a sum of Rs.54,432/- in the same for purchase of machinery and also Rs.3000/- towards rent. Within a short span he had satisfactorily executed work at Subathu, H. P. and received Rs.48,000/- for the same. He also carried out the work at Chandigarh and received Rs.80,000/- for the same. Though there is no proof with regard to the said amount but however it is evident that the deceased, a young man of 41 years had shown enough enterprise by setting up his shop at a busy commercial centre of North India, Chandigarh. He had a long and promising Career and would have earned a substantial sum. The Apex Court in Oriental Insurance Co. Ltd. v. Jashuben and others (2008(4) SCC 162) approved the ratio of law in T. N. State Transport Corpn. Ltd. v. S. Rajapriya and others (2005(6) SCC 236), as under:- “The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better 6 employment or income or might have lost his employment or income together. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase. Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered.” For the purpose of determination of compensation, the Apex Court in Lata Wadhwa and others vs. State of Bihar and others, 2001 ACJ 1735, has determined the income of a house wife to be Rs.3000/-. The Tribunal in the instant case also arrived at the said figure but, however, without any basis. The death took place in the year 2001. The deceased was an interior decorator. If in the case of a house wife the income can be Rs.3000/- then definitely in the instant case, the income of the deceased is bound to be more than that. 7 The Tribunal has assessed the income purely on the basis of guess work. In my view, the dependency determined at Rs.2,000/- is on the lesser side and keeping in view the material on record, it would be just and proper that the income is enhanced to Rs.5100/- and after deducting 1/3rd dependency is determined at Rs.3400/- and as such enhanced from Rs.2,000/- to Rs.3,400/-. This is being done considering that the deceased had set up his business away from home, in a fast growing urban estate of Chandigarh where the potential of higher earnings is always there for a young, hardworking and enterprising person. It has come on record that the deceased had executed two works within the short span of having set up his establishment. Therefore, for the purpose of dependency, the income of the deceased is assessed at Rs.3,400/-. Considering the age of the applicants and the deceased, the multiplier of 10 would be just and reasonable. The claimants, therefore, would be entitled to a sum of Rs.3,400/- x 12 = 40,800/- x 10 = 4,08,000/-. I find that there is no cross-examination to the statement of PW-1 that she had incurred an expenditure of Rs.20,000/- for the funeral of the deceased. The Court below has awarded Rs.5,000/- and Rs.3,000/- as consortium charges and conventional amount. The sum is enhanced to Rs.20,000/- for funeral charges and Rs.50,000/- as consortium charges. The deceased left behind his wife, mother and two minor daughters 8 as legal heirs. He was the only bread earner of the family. The deceased was a young and healthy man and would have lived and earned for a long time. Thus, the claimants are entitled to a total sum of Rs.4,78,000/-. The enhanced compensation shall be apportioned in the same ratio determined by the Tribunal. The claimants shall be entitled to interest as awarded by the Tribunal. The appeal is accordingly allowed in the aforesaid terms. The Award of the Tribunal is modified to the aforesaid extent. No costs. ( Sanjay Karol ), Judge. September 10, 2008. (rana)