FAO No. 1000 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1000 of 1988 Decided on : 08-12-2008 Smt. Kaushalya Bai ....Appellant VERSUS Smt. Raj Rani and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. D.R.Mahajan, Advocate for the appellant. Mr.Kanwaljit Singh, Sr. Advocate with Mr. G.S.Ghuman, Advocate for the respondent no.1. MAHESH GROVER, J This appeal is directed against the award of the Motor Accident Claims Tribunal, Ludhiana, dated 30.7.1988. In an accident which took place on 3.5.1987, Vijay Kumar aged about 22 years lost his life. He was a driver of an Auto-Rickshaw and the accident took place when he was crossing a bridge near Budhanala when a truck came up from opposite side and struck against the Auto Rickshaw killing him in the process. Claim petition was preferred by the mother of the deceased claiming compensation on account of his death. Tribunal assessed the income of the deceased as Rs.1,000/- per month and dependency as Rs.500/- per month. Multiplier of 16 was applied to arrive at the figure of Rs.96,000/-, out of which Rs.72,000/- was awarded to the appellant as the deceased was held guilty of causing the accident to the extent of 25%, FAO No. 1000 of 1988 2 alongwith interest at the rate of 12% per annum from the date of filing of the petition till the date of its realisation. Dis-satisfied with the award, the appellant is in appeal. Learned counsel for the appellant has assailed the award of the Tribunal on the issue of negligence as also on the issue of contributory negligence. It was submitted with reference to the evidence on record that the deceased could not have been said to have been negligent in causing the accident and it was the fault of the driver of the truck. It was next submitted that the income and the consequent compensation has also been assessed inadequately. No one appears for the Insurance Company on whom the liability to satisfy the award has been fastened. I have heard learned counsel for the appellant and have perused the award as also the record. RW1 driver of the truck, who appeared in the witness box to say that the accident took place when he had already crossed the bridge. When he was in the middle, there was a tonga which was being followed by the Auto Rickshaw and the driver of the Auto Rickshaw tried to avoid collision with the tonga and turned towards the right side and in that process, collision with the truck occurred. However, his testimony on this point has been disbelieved by the Tribunal. There is nothing on record to suggest that the accident took place in the manner which has been suggested by RW1 i.e driver of the truck. On perusal of the photographs of the accident which are on record as Ex. P3 to E x. P4 it is apparent that the three wheeler which was being driven by the deceased is damaged from the front right hand side and is also standing very close to the parapet of the bridge. It is evident FAO No. 1000 of 1988 3 therefore that the truck driver had come to the right hand side to obstruct the passage of the Auto Rickshaw which was on its extreme left side and next to the parapet. It is apparent in these circumstances that the driver of the truck was negligent and not the deceased. Therefore, the finding of the Tribunal on this issue is reversed and it is held that the driver of the truck was solely responsible for the accident. The next question that has been determined is the quantum of compensation that has to be awarded to the appellant. The deceased was concededly an Auto Rickshaw driver. There is some evidence on record in the shape of the testimony of Vilayati Ram, PW3 who has testified that he was earning Rs.100/- per day from driving Auto Rickshaw after paying hire charges. In the considered opinion of this Court, even some room is to be given for exaggerated amount as suggested by this witness yet it would not be unfair if the income of the deceased is assessed as Rs.1500/- per month out of which a cut of 1/3rd on account of personal expenses would be just and appropriate and dependency in this manner comes to Rs.1000/- per month i.e. Rs.12,000/- per annum. Mutiplier of 16 which has been applied by the Tribunal considering the fact that he was survived by his mother who is 55 years of age, is just and adequate. Therefore, the compensation in this manner comes to Rs. 1,92,000/-. An amount of Rs.20,000/- is awarded on account of funeral expenses and loss of love and affection. Therefore, the total compensation comes to Rs.2,12,000/-. The amount of Rs.15,000/- which was paid pursuant to the provisions of Section 92-A of the Motor Vehicles Act, if already paid, shall stand adjusted as it is part of the compensation. The enhanced amount of compensation shall be paid alongwith FAO No. 1000 of 1988 4 interest at the rate of 9 % per annum from the date of filing of petition till the date of its realisation. The liability to pay the amount shall be the same as has been determined by the Tribunal. The appeal stands allowed in the aforesaid terms and the award of the Tribunal is modified accordingly. December 8 , 2008 (Mahesh Grover) rekha Judge