IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.502 of 2009 alongwith FAO No.503 of 2009. Date of Decision: 20.9.2011 Bajaj Allianz General Insurance Co. Ltd. (in both the cases) …Appellants. Versus. 1.Smt.Saroj Verma and others in FAO No.502 of 2009 2.Smt.Dwarka Verma @ Roshana and others in FAO No.503 of 2009. .. Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.Aman Sood, Advocate. For the Respondent(s): Mr.Dinesh Kumar Sharma, Advocate for the claimants. Mr.Ashok Sharma, counsel for other Respondents. Deepak Gupta, J. (Oral). 1. These two appeals are being disposed of by a common judgment since they arise out of one accident and the questions of law and fact involved in both the cases are identical. 2. Normally this Court does not like to interfere in awards passed by the MACT. However, when an award is highly excessive or the Tribunal throws to the winds all norms relating to assessment of damages and assesses 2 damages without giving any reasons, then this Court has no option but to exercise its supervisory jurisdiction. In fact, in such a case, it is the duty of this Court to interfere and set aside such orders which lower the esteem of the judicial system. 3. Another disturbing aspect, which I have noticed in a number of cases, is that when the applications are filed by the Insurance Company for leave to defend the cases on all grounds under Section 170 of the Motor Vehicles Act the same are opposed by the owner and the driver on the ground that they are contesting the case. The Tribunals then reject the applications and may be rightly so. However, when the witnesses are examined in Court or submit their affidavits by way of examination-in-chief they are not virtually subjected to any cross-examination by the owner or the driver. The counsel for the Insurance Company obviously cannot cross-examine the witnesses on the issues of negligence and quantum since the application under Section 170 of the Motor Vehicles Act has been dismissed. The Tribunals sit like a mute spectator and do not even try to elicit the truth and like in the present case the statement of one witness regarding the income is accepted as the gospel truth. 3 4. The Tribunals must realize that under the provisions of the Motor Vehicles Act especially Section 166(4) the claims Tribunal can even treat the report of an accident forwarded to it under sub section (6) of Section 159 as an application for compensation under the Act. The Tribunals are expected to award just compensation. The persons manning the Tribunals must realize that the Statue imposes upon them the duty to adjudicate what is the just compensation. 5. No doubt, Judges or Presiding Officers are not expected to act like counsel for a particular party but at the same time they cannot just sit like mute spectators and not even put any question to the witness to elicit the truth especially when the examination-in-chief is by way of affidavit. It has been seen more than often that most of the illiterate litigants are not even aware of what has been stated in the affidavits. These affidavits are not the real statements of the witnesses but are the statements prepared by the counsel, signed blindly by the witnesses. In such cases a greater duty and responsibility is cast upon the Tribunals and Courts to elicit the truth. The role of the Judge is always to find out the truth and if to achieve this purpose the Judge is required to ask certain 4 questions from the witness he should not hesitate to do so. FAO No.502 of 2009: 6. As far as the present case is concerned, the dispute raised by the Insurance Company is with regard to the quantum of compensation granted. In the claim petition filed by the claimants, who are the widow and two major sons of the deceased, it was claimed that the deceased was 52 years of age at the time of the accident and that he was a registered Government Contractor and Horticulturist. It was alleged that he was earning Rs.50,000/- per month. He was also Senior Vice President of District Congress Committee, Sirmour and Pradhan of the Gram Panchayat for three times. 7. One of the claimants Sh.Ravinder Singh Verma stepped into the witness box and repeated the assertions made in the claim petition. According to him, his father had been handling contracts of Rs. 2-3 crores for the last 2-3 years but no documents in proof of the awards of such contracts have been placed on record. According to him, his father had raised loans for purchase of JCB, compressor machines etc. and had to pay loan instalment of Rs.51,000/- per month but again no material in support of these averments have been placed on record. The 5 only document placed on record in support of the income of the deceased is Ext.PA which is the copy of the income tax return for the year 2004-2005. According to this return the total income from business and profession of the deceased was Rs.1,13,130/- and to this agricultural income which has been added is Rs.25,000/-. Therefore, out of the tax deducted at source i.e. Rs.31,682/-, Rs.19056/- was refunded to deceased Sh.Gian Singh Verma. The Jamabandi Ext.PW-2/M placed on record shows that the deceased had a large amount of agricultural land but the same had been inherited by the claimants themselves. No other document has been proved on record. 8. The accident occurred on 26.8.2007 and other than the return for the year 2004-05 no other return has been placed on record. The only inference which can be drawn is that no income tax return was filed for the subsequent years. Therefore, the learned Tribunal was totally unjustified in taking the income of the deceased at Rs.1,50,000/- without any proof thereof. At best, the income could have been taken at Rs.1,38,130/- and the amount of Rs.25,000/- being derived from agricultural income had to be deducted because the land has been inherited by the major sons and the widow and they 6 would be earning the same amount from the said agricultural land. 9. Another factor which the learned Tribunal did not keep into consideration at all is that the sons who were the claimants are both majors. Sh.Ravinder Singh Verma, who appeared in the witness box, is a lawyer by profession and already had about 6 years standing at the Bar. How could he claim to be totally dependent upon his father? The other son did not step into the witness box but it is also apparent that he was a major. In these circumstances, the learned Tribunal erred in assessing the loss of dependency at Rs.one lakh per annum and thereafter awarding Rs.75000/- for love and affection, Rs.10,000/- for funeral expenses and Rs.50,000/- for loss of consortium. 10. While awarding damages, it is not only the loss of dependency but also the loss of estate which has to be taken into consideration. The income of the deceased works out to Rs.1,38,130/-. If the amount of about Rs.18,000/- is deducted for the agricultural income, which the heirs of the deceased must be getting from the same agricultural land, the loss would work out to Rs.1,20,000/-. If, Rs.40,000/- is deducted towards the personal expenses of deceased, the balance amount 7 works out to Rs.80,000/- per annum. The age of the deceased admittedly was 52 years and as per law laid down by the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, the applicable multiplier would be 11. Therefore, the loss of dependency works out to Rs.8,80,000/-. In addition thereto, the claimants are entitled to Rs.10,000/- for funeral expenses and Rs.10,000/- as conventional damages. The widow is also held entitled to consortium of Rs.20,000/- i.e. Rs.9,20,000/- in all. The interest @12% p.a. granted by the Tribunal is extremely on the higher side. The Apex Court in recent cases is only awarding interest @ 7.5%, but keeping in view the increase in rates of interest the claimants are held entitled to interest @ 9% p.a. from the date of filing of the claim petition till the deposit of the amount. 11. In view of the above discussion, the appeal is allowed and the award of the learned Tribunal is modified and reduced from Rs.12,35,000/- to Rs.9,20,000/- alongwith interest @ 9% p.a. from the date of filing of the claim petition till deposit of the amount. Only Smt.Saroj Verma, widow is entitled to the entire amount since the sons are admittedly major and have sufficient source of income. No order as to costs. 8 FAO No.503 of 2009: 12. This appeal arises out of the claim petition filed by the heirs of Sh.Sahi Ram, husband of claimant Smt.Dwarka Verma and father of Rakesh Verma, Mahesh Verma and Smt.Suman. It is alleged that the deceased was 67 years old and was earning Rs.30,000/- per month. The learned Tribunal hold that the deceased must be earning Rs.15,000/- per month and after deducting Rs.5000/- for personal expenses of the deceased calculated loss to the estate at Rs.10,000/- per month and applying a multiplier of 5 assessed loss to the estate at Rs.6 lakhs. In addition thereto, the learned Tribunal awarded Rs.50,000/- for love and affection and Rs.10,000/- for last rites. 13. The claimant Smt.Dwarka Verma filed her affidavit stating therein that her husband was earning Rs.30,000/- per month and used to give her Rs.25,000/- per month. The only questions put to her by the owner and driver were that the husband used to earlier work with PWD and had thereafter retired from service and was doing agricultural work. She stated that her husband owned about 40 bighas of land out of which he used to grow flowers in 7-8 bighas and other crops in 20 bighas. She also stated that one of her son is an Engineer, her daughter is married 9 and living with her in-laws and the 3rd son is studying. No documents have been placed on record to show what were the exact land holding of the deceased. The revenue record placed on record does not show that deceased owned 40 bighas of land. The major portion of the land is shown to be Ghasni and not cultivable. Very little land is actually shown to be cultivable. The land has been inherited by the widow and the children, all of whom are major and they can by putting in some effort earn the same amount from the land. 14. At best, what can be assessed is the loss caused due to the fact that the father is no longer alive to look after the land. The father was already 67 years old and even otherwise the widow and children would have had to look after the land after some time. The learned Tribunal without any evidence or material on record has assessed the income at Rs.15,000/- per month. As pointed out above, almost the entire land is ghasni land and it cannot be imagined that he could have been earning so much money only from ghasni. It was also come on record that the deceased was more into politics than agriculture. His sons are well settled and virtually not dependent upon him. In my view, contribution of management of the agricultural land of the deceased at best can be assessed 10 at Rs.10,000/- per month and after deducting his personal expenses, the loss to the estate can be taken at Rs.5000/- per month or Rs.60,000/- per year. Since, he was 67 years old the multiplier which can be applied is 5 and therefore the loss of dependency works out to Rs.3,00,000/-. In addition thereto, the widow is held entitled to Rs.20,000/- for loss of consortium and Rs.10,000/- for funeral expenses i.e. the claimants are held entitled to Rs.3,30,000/- in all. 15. The interest @12% p.a. granted by the Tribunal is extremely on the higher side. The Apex Court in recent cases is only awarding interest @ 7.5% p.a, but keeping in view the increase in rates of interest the claimants are held entitled to interest @ 9% p.a. from the date of filing of the claim petition till the deposit of the amount. 16. In view of the above discussion, the appeal is allowed and the award of the learned Tribunal is modified and reduced from Rs.6,60,000/- to Rs.3,30,000/- alongwith interest @ 9% p.a. from the date of filing of the claim petition till deposit of the amount. No order as to costs. September 20, 2011. ( Deepak Gupta ), PV Judge.