FAO No. 889 of 1992 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 889 of 1992 (O&M) and X-objection No.51-CII of 2011 Date of decision 28.9.2011 Smt.Sarupi and Others Appellants v. Ram Chander and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sachin Mittal, Advocate for the appellants Mr.Neeraj Khanna, Advocate for the respondent-Insurance Company .... JITENDRA CHAUHAN.J This appeal has been filed by the Appellants, Smt. Sarupi against the Award dated 14.1.1992, passed by the Motor Accident Claims Tribunal, Gurgaon (for short the Tribunal) in MACT petition No. 89 of 17.8.1990. The appellant-claimants Smt. Sarupi and her six minor children have filed this appeal praying that the Award of the Ld. Tribunal is on the lower side; that Tayyab Hussain was 40 years old and getting salary of Rs. 3000/- from Haryana Police. The cut on personal income of the deceased is on the higher side and the multiplier is on the lower side. The brief facts of the case are that on 14.5.1990 Mohammad Tayyab Hussain, his two daughters Sabra and Nishaira; son Nasir Hussain and his sister's son Fida Hussain were going in Maruti Van bearing registration No. DNB 7847 from Gurgaon to Village Sakera in Tehsil Nuh. FAO No. 889 of 1992 (O&M) 2 Dina Nath, respondent No.4 was driving the said vehicle in the right direction. When the Van reached near Village Badshahpur towards Sohna side, a Jonga Jeep bearing registration No. DID 753, driven by Raj Kumar, respondent No.2 , in a rash and negligent manner, struck against the Van. As a result of accident, all the occupants of the Maruti Van sustained injuries. Mohammad Tayyab Hussain and Fida Hussain succumbed to their injuries on reaching hospital. Upon notice respondent Nos. 1 & 2, driver and owner of the Jonga Jeep denied the occurrence of accident. It was pleaded that the driver of Maruti Van was driving the said vehicle in a rash and negligent manner and the accident occurred due to his negligence. Respondent Nos.3 and 4, owner and driver of Maruti Van pleaded that the accident occurred due to rash and negligent driving of driver of Jonga Jeep. Respondent No.6, Insurance company (insurer of Maruti Van) pleaded that the Insurance Company is not liable to satisfy the Award, as the driver of the Jonga Jeep was at fault and the accident occurred by his rash and negligent driving. From the pleadings of the parties, the following issues were framed:- 1. Whether the accident in question was caused by rash and negligent driving of Jonga Jeep No. DID 753 by respondent No.2 or due to contributory negligence of the said driver and respondent NO.4, driver of Maruti Van. No. DNB 7847? OPP FAO No. 889 of 1992 (O&M) 3 2. Whether petitioners are entitled to compensation,if so, how much and from whom? OPP 3. Whether petition is bad for mis-joinder and non-joinder of parties? OPP 4. Whether petitioners have no locus standi to file these petitions? OPR 5. Relief” After evidence was led by the parties, Ld. Tribunal, in paras 25, 26 and 27, of the Award, observed as under:- “25. As regards the ratio of the fault of respondents No. 2 and 4, we have only the testimony of Sube Singh P.W5 in this behalf that more fault was of Jonga driver. This statement finds support from the first information report also. So, the fault has to be appreciated at 65% for Jonga driver respondent No.2 and 35% for Van driver respondent No.4. 26.For the reasons recorded above, I hold that the accident in question was caused due to rash and negligent driving of Jonga jeep No. DID 753 by respondent No. 2 and rash and negligent driving of van No. DNB 7847 by respondent No.4, in other words, due to the composite negligence of both the drivers i.e respondent Nos. 2 & 4 in the ratio of 65% and 35% respectively. The issue is accordingly decided in favour of the petitioners. 27.In case No. 89, the deceased Tayyab Hussain was a police inspector in Haryana Police. In this behalf, Sher Singh, PW1 brought record from the office of Superintendent of Police, FAO No. 889 of 1992 (O&M) 4 Narnaul and stated that Mohammad Tayyab Hussain was posted as Police Inspector and his gross salary last drawn was Rs. 2820/- per month and his date of birth was 1.4.1950. He also stated that Sarupi-petitioner No.1 is widow of the deceased whereas petitioner Nos. 2 to 7 are his sons and daughters. He also stated about the dates of birth of the said issues showing that petitioner No.2 only is major out of them and petitioners No. 3 to 7 are minors. Sarup, PW2 also stated that her husband was employed as Police Inspector and his salary was Rs. 3000/- per month. She also stated that petitioner Nos. 2 to 7 are their issues. She also deposed that age of her husband was 40 years. According to her petitioners No. 2 to 7 are still students. All this evidence stands un-rebutted and is cogent and reliable and it stands proved that petitioner No.1 is widow and petitioners No. 2 to 7 are sons and daughters of the deceased. It is also proved that petitioner Nos. 3 to 7 are minors. It is also established that date of birth of the deceased was 1.4.1950 an so, his age at the time of the accident was a little over 40 years and his salary was Rs. 2820/- per month. So, the dependency of the petitioners is assessed at Rs. 2000/- per month i.e a little more than 2/3rd of the income of the deceased. There being seven petitioners who are dependent on the deceased, the dependency is assessed at marginally more than 2/3rd of the income of the deceased. So, the dependency comes to Rs. 24000/- per annum.” FAO No. 889 of 1992 (O&M) 5 By applying the multiplier of 16, the total compensation awarded by the Ld. Tribunal was Rs. 3,84,000/-. Aggrieved against the same, the appellants-claimants have filed this appeal. Learned counsel for the appellants submitted that the Award of the Ld. Tribunal is on the lower side and the income has also been assessed on lower side. He further submitted that keeping in view the age of the deceased and the number of dependents, the awarded amount be enhanced by applying the guidelines formulated in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another, ( 2009) 6, Supreme Court Cases, 121. On the other hand, learned counsel for the Insurance Company filed X-objections No. 51-CII of 2011 stating that the Ld. Tribunal has wrongly awarded Rs. 3,84,000/- to the claimants by taking monthly dependency at Rs.2000/- per month. I have heard the learned counsel for the parties and have gone through the file. The Ld. Tribunal, in para 25 rightly observed that the accident occurred due to composite negligence of drivers of Maruti Van and Jonga Jeep and they were responsible for 35% and 65% negligence. The amount of compensation awarded by the Ld. Tribunal is on the lower side in view of the age and number of dependents of the deceased. While dealing with question of computation of compensation, Hon'ble the Apex Court in the case of Sarla Verma (supra) (paras 43,48 and 49) observed as under:- “43. In this case as noticed above the salary of the deceased at time of death was Rs. 4004. By applying the FAO No. 889 of 1992 (O&M) 6 principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs. 8008) by the time of his retirement and consequently, determined the monthly income as an average of Rs. 4004 and Rs. 8008 that is Rs. 6006 per month or Rs. 72,072 per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of the future prospects. 48. The appellants next contented that having regard to the fact that the family of the deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one-third, nor one-fourth as assessed by the High Court, but one-eight. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under Section 163-A read with the Second Schedule to the MV Act. The percentage of deduction on account of personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. FAO No. 889 of 1992 (O&M) 7 49. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on traveling/transportation and other needs. Therefore, we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as Rs. 57,658 per anum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore, the total loss of dependency would be Rs. 57,658 x 15 = Rs. 8,64,870/-.” In the instant case, applying the formula applied by Hon'ble the Apex Court above; in Smt. Sarla Verma's case (supra), this Court feels that ends of justice would be met if the Award is modified in the following manner:- By increase of 50% in income of the deceased:- Rs. 2820 + Rs. 1410 = Rs. 4230/- per month less 1/5th deduction on personal expenses = Rs. 3384/- Annual income = Rs. 3384 x 12 = Rs. 40608/- Rs. 40608 x 15 (multiplier) = Rs. 6,09,120/- In view of the above, the appeal is partly allowed. The appellants will be entitled to the sum of Rs. 6,09,120/- minus the amount of compensation already awarded. The balance amount of compensation which comes to Rs. 2,25,000 ( to make it a round figure) shall be paid by the respondents as ordered by the Learned Tribunal within 45 days from the FAO No. 889 of 1992 (O&M) 8 date of receipt of copy of this judgment failing which the claimants- appellants shall be entitled to interest at the rate of 7.5% per annum from the date of filing this appeal till its payment. The amount so deposited shall be disbursed to the claimants-appellants proportionately as ordered earlier by the learned Tribunal in the Award. The X-objection No. 51-CII of 2011 filed by the respondent- Insurance Company, being devoid of any merits, stands dismissed accordingly. (JITENDRA CHAUHAN) JUDGE 28.9.2011 MS