IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 2602 of 1999 Date of Decision : February 13, 2009 Anita Rani and others ....Apellants Versus Balbir Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Pawan Kumar, Senior Advocate assisted by Mr. Saquib Ali Khan, Advocate for the appellants. None for respondents No. 1, 2, 4 and 5. Mr. Man Mohan, Advocate for respondent No. 3. T.P.S. MANN, J. Vide order dated 18.2.1999, learned Motor Accidents Claims Tribunal, Ambala allowed the claim petition filed by the appellants under Section 166 of the Motor Vehicles Act, 1988 and awarded them an amount of Rs. 7,79,000/- as compensation on account of death of S.K. Aggarwal in a motor vehicular accident caused by rash and negligent driving of truck by Balbir Singh. Respondents No. 1 to 3, i.e., driver, F.A.O. No. 2602 of 1999 -2- owner and insurer, respectively, of the truck were held liable to pay the amount of compensation jointly and severally. The claimants were also granted an interest @ 12% per annum on the amount of compensation from the date of filing of the claim petition till realisation of the amount. On 15.3.1995, deceased-S.K. Aggarwal along with Gurjinder Singh, Rajinder Singh, Hari Ram and Ram Pal, started his journey from Ambala Cantt. for Mathura in a Maruti car bearing registration No. CH- 01-3073. The car was being driven by Rajinder Singh. At about 3.30 A.M. on 16.3.1995 when the Car reached near village Chhata on Delhi- Mathura G.T. Road, one truck bearing Registration No. PIR-7255, driven by Balbir Singh-respondent No.1, came at a very fast speed. It was trying to overtake the car but without blowing any horn. Meanwhile, one vehicle came from the opposite direction. Balbir Singh-respondent No. 1, while overtaking the car struck his truck against the car in a rash and negligent manner. As a result of the accident, Rajinder Singh, driver of the car, died at the spot and so did S.K. Aggarwal. The other occupants of the car received injuries in the accident. Immediately after the accident, many truck drivers gathered there and forced Ram Pal injured to effect a compromise. Accordingly, a report was got recorded in the daily diary register that the car had rammed into a stationary truck. However, according to the claimants, that report was wrong and incorrect as the accident had taken place on account of rash and negligent driving of the truck by Balbir Singh-respondent No. 1. Accordingly, the claimants filed F.A.O. No. 2602 of 1999 -3- a petition under Section 166 of the Motor Vehicles Act, 1988, wherein they prayed for the grant of compensation of Rs. 25,00,000/- on account of death of S.K. Aggarwal. According to them, they were all dependents upon the deceased who was 36 years of age and serving as an Accountant with Syndicate Bank, Ambala Cantt. from where he was earning an amount of Rs. 7,000/- per month. The claim petition filed by the appellants was consolidated with the other four claim petitions, three filed by the injured occupants of the car, and the fourth by legal heirs of Rajinder Singh, driver of the car, as all the claim petitions had arisen out of the same accident. The claim petition filed by the appellants was contested by the respondents by filing their written statements. Balbir Singh, driver of the truck, pleaded that the claim petition was not maintainable as the accident took place on account of negligent driving by Rajinder Singh- deceased of his car, who rammed the car into the stationary truck standing on the Kacha portion of the road. The truck had been stopped by the police by setting up a Naka and the rear indicators of the truck were on at that time. Respondent No. 3, insurer of the truck in question, pleaded that the claim petition had been filed by the claimants in collusion with respondents No. 1, 2 and 4. Respondent No. 1 was not having a valid driving licence and he was driving the truck in violation of the terms and conditions of the insurance policy. Even the driver of the F.A.O. No. 2602 of 1999 -4- Maruti car was not holding a valid driving licence at the time of the accident. Accordingly, it was prayed that the claim petition be dismissed. Respondent No. 2, owner of the truck and respondent No. 4, owner of Maruti car, did not appear despite service and they were, accordingly, proceeded against ex parte. Respondent No. 5, insurer of the Maruti car also filed a separate reply and relied upon the report lodged with the police to the effect that the accident was not caused due to rash and negligent driving of the Maruti car but it was caused on account of the car hitting a stationary truck. On the basis of the pleadings of the parties, learned Tribunal framed the following issues :- 1. Whether deaths of Satish Kumar Aggarwal and Rajinder Singh son of Niranjan Singh and injuries to Gurjinder Singh, Rajinder Singh s/o Mangat Ram and Hari Ram were caused in a vehicular accident on 16.3.1995 at 3.00 A.M. at village Chahta on Delhi-Mathura Road on account of rash and negligent driving of truck No. PIR-7255 driven by respondent No. 1 and owned by respondent No. 2 ? OPP. 2. Whether the claimants are entitled to any compensation, if so, to what amount and from whom ? OPP. F.A.O. No. 2602 of 1999 -5- 3. Whether the claim petition is not maintainable? OPR. 4. Whether the claim petition has been filed by the claimants in collusion with respondent No.1, 2 and 4 ? OPR-3. 5. Whether at the time of accident the respondent No. 1 was not having valid driving licence and was driving the truck in violation of terms and conditions of the insurance policy ? OPR-3. 6. Whether the driver of Maruti car No. CH-01- 3073 was not having any valid driving licence and was driving the car in violation of law? OPR-3. 7. Whether the claimants have any cause of action against the respondent No.5 ? OPP. 8. Relief. After going through the entire evidence brought on record by the parties and hearing learned counsel for the parties, learned Tribunal held that the death of S.K. Aggarwal and also of Rajinder Singh, besides injuries to Gurjinder Singh and Hari Ram were caused on account of rash and negligent driving of the truck by its driver Balbir Singh-respondent F.A.O. No. 2602 of 1999 -6- No. 1, which truck was owned by respondent No. 2. After relying upon the salary certificate of deceased S.K. Aggarwal, learned Tribunal calculated the monthly dependency to be Rs. 4,000/- and the annual dependency to be Rs. 48,000/-. As the deceased was 36 years of age, multiplier of 16 was applied and the amount of compensation was worked out to Rs. 7,68,000/-. Learned Tribunal also awarded an amount of Rs. 4,000/- towards the transportation of the dead body, Rs. 5,000/- towards the loss of consortium and Rs. 2,000/- towards the funeral expenses so as to grant a total compensation of Rs. 7,79,000/-. Claiming that the amount of compensation awarded by the learned Tribunal was highly inadequate, the claimants filed the present appeal with a prayer for enhancing the amount of compensation to Rs. 20,00,000/-. At the outset, it may be noticed that respondent No. 3- Insurance Company had filed F.A.O. No. 2186 of 1999 against the impugned award but the said appeal was dismissed by a Division Bench of this Court on 14.12.1999. Under these circumstances, the limited question which arises for determination in the present appeal is the quantum of compensation which the claimants may be entitled to on account of death of S.K. Aggarwal, who was husband of Anita Rani- appellant and father of Binni and Rozer Aggarwal-appellants. F.A.O. No. 2602 of 1999 -7- It has come in the testimony of Anita Aggarwal-PW2 that her husband S.K. Aggarwal was working as an Accountant in the Syndicate Bank, Ambala Cantt. and drawing an amount of Rs. 7,000/- per month, out of which he used to contribute Rs. 6,500/- towards family expenses. The deceased was sole bread winner of the family. He was aged 36/37 years at the time of the accident. In her cross-examination she stated that she had joined as a Clerk in the Syndicate Bank at Ahmedgarh in October, 1995 on compassionate grounds and at the time of her testimony she was getting a salary of Rs. 2800-3000/- per month. She denied that her husband was getting Rs. 4,500/- per month. Shri Jagdish Jindal, Special Assistant, Syndicate Bank, Ambala Cantt, while appearing as PW5 proved the salary certificate Ex. P1 of Satish Kumar Aggarwal (S.K.Aggarwal), who was posted as a Clerk in the Bank. As per the salary certificate, the last pay of the deceased was Rs. 6,239.64p., which was revised to Rs. 6,578.09p. The deceased was eligible for promotion to J.M.G.S.-I in the pay scale of Rs. 4250-8050 and had he been promoted, his total emoluments would have been approximately Rs.11,000/-. The witness further testified that a Clerk could reach upto the position of Divisional Manager at the time of his retirement. During his cross-examination, he also stated that the deceased had studied upto B.Com and was appointed as a Clerk in the year 1978. Further, that the deceased had taken a festival loan, which was being deducted from his salary in installments. The deceased had F.A.O. No. 2602 of 1999 -8- taken housing loan and the scooter loan and even installments of those loans were also being deducted. However, there is no mention of these deductions in the pay certificate Ex. P1. In view of the testimonies of Anita Aggarwal-PW2 and Jagdish Jindal, PW5, learned Tribunal had held that the monthly dependency was Rs. 4,000/- and the annual dependency was, thus, Rs. 48,000/-. As the deceased was 36 years of age, a multiplier of 16 was applied so as to grant an amount of Rs. 7,68,000/- as compensation apart from transportation charges, loss of consortium and funeral expenses. Learned counsel for the appellants submitted that the approach of the learned Tribunal in calculating the dependency and then computing the amount of compensation payable to the appellants was conservative one and not based on any scientific method. For taking into consideration the future prospects of the deceased, the gross income at the time of death is to be calculated and the same increased by double the amount. The average of both the figures would represent the approximate loss figures. In this regard, he has placed reliance on Smt. Sarla Dixit and others v. Balwant Yadav 1996 (2) PLR 656 (SC), where the working of the scientific formula was demonstrated as under:- “Adopting the same scientific yardstick as laid down in the aforementioned judgment, the computation of compensation in the present case F.A.O. No. 2602 of 1999 -9- can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs. 1,543/- per month. Rounding it up to figure of Rs. 1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while discharging the military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i.e., up to Rs.3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely, Rs. 1,500/- per month to the maximum which he would have otherwise got had he not died a premature death i.e. Rs. 3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs. 4,500/- divided by 2, i.e. Rs. 2,200/-. Rs. 2,200/- per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3rd will have to F.A.O. No. 2602 of 1999 -10- be deducted by way of his personal expenses and other liabilities like payment of Income-tax etc. That would roughly work out of Rs. 730/- per month but even taking a higher figure of Rs. 750/- per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs. 2,200/- per month balance of Rs. 1,450/- which can be rounded up to Rs. 1,500/- per month would have been the average amount available to the family of the deceased, i.e. his dependents, namely appellants herein. It is this figure which would be the datum figure per month which on annual basis would work out to Rs. 18,000/-. Rs. 18,000/-, therefore, would be the proper multiplicand which would be available, for capitalisation for computing the future economic loss suffered by the appellants on account of untimely death of the bread winner.” The aforementioned formula, according to learned counsel for the appellants, was followed by this Court also in Mrs. Sarabjit Kaur and others v. Vikram Chehal and others 2008(2) PLR 354, by observing as follows :- “For taking into consideration the future prospects of the deceased, reliance is placed on the case of Sarla Dixit v. Balwant Yadav, (1996- 2) 113 P.L.R. 656. (SC), wherein the Apex Court observed that protection of future prospects can F.A.O. No. 2602 of 1999 -11- be reflected by calculating the gross income at the time of death and then increase the same by double the amount. The average of both the figures would represent the approximate loss figures. In the present case, the gross income of the deceased was Rs. 7,136/- say Rs. 7,100/- per month and if this amount is doubled, it comes to Rs. 14,200/- per month. By adding the present income with the future income, the total amount comes to Rs. 21,300/-, the average of which comes to Rs. 10,650/-, say 10,700/-. This can be considered to be the gross-income and dependency will be worked out by deducting 1/3rd amount i.e. Rs. 3,570/-. After deducting 1/3rd from total of Rs. 10,700/-, the dependency comes to Rs. 7,130/-, say Rs. 7,200/- per month. Annual dependency would be Rs. 7,200 x 12 = Rs. 86,400/-.” Keeping in view the law as settled in the aforementioned judgments, this Court will have to look to the Last Pay Certificate Ex. P1 vide which the deceased was earning Rs. 6239.64p. per month which income stood revised to Rs. 6,578.09p. per month. As the deceased was to serve the Bank for another 16 years, it would not be unreasonable to predict that his gross monthly income would have risen to at least double than what he was earning at the time of his death, i.e., Rs. 6,578.09p. per month. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, i.e. Rs. 6,578.09p. per F.A.O. No. 2602 of 1999 -12- month to the maximum which he would have otherwise got, had he not died a premature death, i.e. Rs. 13,156/- per month and dividing by 2. Thus, the average gross monthly income spread over the entire future career, had be been available would work out to Rs. 19,734/- divided by 2, i.e. Rs. 9,867/-. Rs. 9,867/- per month would have been the gross monthly average income available to the family of the deceased, had he survived as a bread winner. From that gross monthly income, at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities like payment of income tax etc. The dependency, thus, works out to Rs. 6,578/- per month and the annual dependency of Rs. 78,936/-. Keeping in view the age of the deceased, learned Tribunal had rightly applied the multiplier of 16. The said multiplier has already been upheld by a Division Bench of this Court when it dismissed the appeal filed by the respondent-Insurance Company. When the multiplier of 16 is applied, the amount of compensation works out to Rs. 12,62,976/-. To this figure Rs. 4,000/- is to be added towards transportation of the dead body, Rs. 5,000/- towards loss of consortium, Rs. 2,000/- towards funeral expenses, which leads to a total figure of Rs. 12,73,976/-. This is the amount which the appellants would be entitled to get by way of compensation from respondents No. 1 to 3, who shall be jointly and severally liable. Resultantly, the appeal is allowed by enhancing the amount of compensation from Rs. 7,79,000/- to Rs. 12,73,976/-. The appellants shall also be entitled to interest @ 7.5% per annum on the enhanced F.A.O. No. 2602 of 1999 -13- amount of compensation from the date of filing of the claim petition till the actual realisation of the enhanced amount. Out of the enhanced amount of compensation, i.e. Rs. 4,94,976,Rs. 2,94,976/- shall be paid to Anita Rani-appellant in cash, while Binni and Rozer Aggarwal shall share the remaining amount of Rs. 2,00,000/-. They being aged 8 years and 5 years at the time of filing of the claim petition on 6.10.1995 and already become major by now, the amount falling due to their share shall also be paid to them in cash. No costs. ( T.P.S. MANN ) February 13, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO