FAO NO. 5433 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 5433 of 2010 Date of order: 08.11.2011 Dilbag and another ..... Appellants Versus Dharamraj and another .... Respondents -- CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Sumit Sangwan, Advocate for the appellants. None for respondent no.1. Mr. Sanjiv Pabbi, Advocate for the insurance company. **** Vijender Singh Malik, J. This is an appeal brought by the claimants, the parents of the deceased Amarjeet for enhancement of compensation awarded to them on the death of said Amarjeet, in a sum of Rs.2,50,000/- by learned Motor Accidents Claims Tribunal, Bhiwani (for short 'Tribunal') vide award dated 13.04.2010. The claim petition brought by the appellants under the provisions of section 163-A of Motor Vehicles Act, 1988 (for short 'the Act'), is as under:- On 07.10.2007 Amarjeet alongwith his father Dilbag was going to Charkhi Dadri in a maruti car bearing registration no.HR-19C-2254. It was driven by respondent no.1, who is cousin brother of the deceased. At FAO NO. 5433 of 2010 2 about 7.00 AM when the car reached ahead of village Samaspur, a jeep coming from the side of Dadri had hit the car. The car consequently turned turtle and the occupants received injuries. The driver of the jeep escaped. Amarjeet died on the way to the hospital. Amarjeet was 15 years old and he had passed his middle standard examination in February 2006 and was a brilliant student. His monthly income was Rs.2500/- as he was assisting his father in agricultural work. Compensation in a sum of Rs.10,00,000/- has been sought by way of this claim petition. Respondent no.1 , the driver-cum-owner of the maruti car has claimed the petition to be based on false averments. According to him, Amarjeet did not suffer any injury on account of the negligence on his part. He has claimed that the vehicle was hit by a jeep and so the claim petition was not maintainable against him. Respondent no.2 , National Insurance Company has also denied the accident to have occurred on account of rash and negligent driving of the car. According to it, the accident occurred due to rash and negligent driving of the jeep and provisions of section 166 of the Act were applicable while petition under section 163-A of the Act was not maintainable. The plea of mis-joinder and non-joinder of parties has been taken. It is also claimed that the vehicle was being driven in violation of the terms and conditions of the insurance policy as the person driving the same had a fake and forged licence. On the pleadings of the parties, the following issues were framed by learned Tribunal:- FAO NO. 5433 of 2010 3 “1- Whether Amarjeet died during the use of Maruti car bearing registration no.HR-19C-2254 being driven by respondent no.1 as alleged ?OPP 2- If issue no.1 is proved, whether claimants are entitled for compensation, if so, to what amount and from whom ?OPP 3- Whether petitioner is vague, indefinite, not filed in accordance with provisions of law and is not maintainable?OPR 4- Whether the petitioner are estopped by their own act and conducted from filing the present petition ?OPR 5- Whether the petition is bad for non-joinder and mis- joinder of necessary parties?OPR 6- Whether petitioners have no locus standi to file the present petition?OPR 7- Whether the claim petition is result of collusion in between claimants and respondent no.1?OPR2 8- Whether respondent no.1 was not having a valid driving licence and vehicle in question was being driven in violation of terms and conditions of insurance policy at the time of accident ?OPR-2 9- Relief” FAO NO. 5433 of 2010 4 Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal has made the impugned award. Feeling dis-satisfied with the awarded amount, the claimants have brought this appeal for enhancement of the same. I have heard Shri Sumit Sangwan, learned counsel for the appellants and Mr. Sanjiv Pabbi, learned counsel for the insurance company and have gone through the record. Learned counsel for the appellants has submitted that learned Tribunal did not undertake to assess compensation by assessing the income of the deceased, finding dependency of the claimants and applying the multiplier system. According to him, a sum of Rs.2,50,000/- has been awarded as lump-sum compensation in favour of the claimants. He has submitted that in a decision of Hon'ble Delhi High Court in National Insurance Co. Ltd. v. Farzana and others 2009 ACJ 2763, where the deceased was seven years old,a student of 2nd standard, the award of the Tribunal in a sum of Rs.3,62,500/- was upheld. In another decision of Hon'ble Delhi High Court in Jitender Kumar and another v. Oriental Insurance Co. Ltd. and another 2010 ACJ 242 the compensation was enhanced to Rs.3,75,000/- in a case of death of 3 years old child. A decision of Hon'ble Supreme Court in R.K. Malik and another v. Kiran Pal and others 2009 has also been cited. It was a case of number of deaths. Enhancement in the amount of compensation only appears in the judgment, which has been in a sum of Rs.75,000/-. FAO NO. 5433 of 2010 5 Learned counsel for the insurance company, on the other hand, has submitted that the deceased has although been claimed as having income, yet the same is not proved and he would be taken as non- earning person, compensation on whose death has to be assessed as per the second schedule appended to the Act. According to him, the same would come to Rs.1,80,000/- at the most and could not exceed in any manner beyond Rs.2,00,000/-. According to him, compensation has been rightly awarded by learned Tribunal in this case. Though the deceased was claimed as 15 years of age, yet he was under that age. He was a student. In case, as alleged, he had been a brilliant student, he cannot be said to be devoting much of his time to help his parents, so as to have some income. So, it would be a case of notional income, which for non-earning persons is Rs.15,000/- per annum, as per the second schedule applicable to this case brought under section 163-A of the Act. Even if the multiplier of 18 is applied to the aforesaid income and the amount is reduced by 1/3 in consideration of the expenses of the victim on himself, then the amount comes to Rs.1,80,000/-, to which a sum of Rs.4500/- can be added for loss of estate and funeral expenses. Learned Tribunal has awarded a sum of Rs.2,50,000/- and the said amount cannot be reduced in the absence of an appeal or cross- objections on behalf of the insurance company. Though the second schedule to the Act is not held to be accurate and is to be looked as a guide, yet nothing beyond its terms can be awarded as compensation. Even if the ratio of the decisions of Hon'ble FAO NO. 5433 of 2010 6 Delhi High Court in National Insurance Co. Ltd. 's case (supra) is adopted, the compensation would still come to Rs.2,50,000/-, which has been awarded by the Tribunal. Therefore, being unable to agree with the decisions of Hon'ble Delhi High Court, I find no merit in the appeal and dismiss the same, upholding the award. (VIJENDER SINGH MALIK) JUDGE 08.11.2011 dinesh