FAO No. 29 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 29 of 2011 Date of decision : 17.10.2011 Smt. Harmesh Devi and Others Appellants v. Kushal Kumar and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Amrik Singh, Advocate for the appellants None for the respondents .... JITENDRA CHAUHAN.J This appeal has been filed by the Appellants against the Award dated 27.7.2010, passed by the Motor Accident Claims Tribunal, (Adhoc), Fast Track Court, Ropar (for short the Tribunal). The brief facts of the case are that on 26.4.2009, deceased Dev Raj @ Nohria Ram alongwith Gulzar Singh and Pardeep Kumar, was going to Baba Balak Nath Temple on his scooter bearing registration No. PB-12C- 4101. At about 5 p.m. HP Roadways bus No. HP-20A-9009, driven by respondent No.1, in rash and negligent manner, came from Una side. It hit against the scooter of Dev Raj. He fell down and received multiple injuries. He was taken to BBMB Hospital, Nangal, where he succumbed to his injuries. FIR No. 44 dated 26.4.2009, under sections 279/337/338/427 IPC was registered in Police Station, Nangal. Later on section 304-A IPC was added, on the death of Dev Raj. Upon notice respondents denied the alleged accident. It was FAO No. 29 of 2011 2 pleaded that a false FIR has been registered to get compensation from the respondents. From the pleadings of the parties, the following issues were framed:- 1. Whether the deceased died in the accident? OPA 2. Whether the claimant is entitled to compensation, if so, to what extent and from whom? OPA 3. Whether the present claim petition is not maintainable? OPR 4. Whether the driver of scooter was not holding a valid and effective driving licence at the time of accident? OPR 5. Whether the vehicle bearing No. PB20A-4009 was not having a valid route permit at the time of accident? OPR 6. Whether the present claim petition is bad for non joinder of necessary parties? OPR 7. Relief”. After the evidence was led by the parties, Ld. Tribunal observed that the accident on 26.4.2009 occurred due to rash and negligent driving of respondent No.1 in which Dev Raj lost his life. So far compensation is concerned, in para 9 of the Award, it was observed as under:- “9.So far as quantum of compensation is concerned, as per averments made in the petition, the deceased was 50 years old and he was running a Sweet shop at Garhshankar Road, Nurpur Bedi and he was also agriculturist and was also doing the business of dairy farming and his monthly income was Rs. 20,000/- . PW-1 also deposed that her husband was running a FAO No. 29 of 2011 3 sweet shop in the name and style of Sharma Sweets and he was agriculturist and was also doing the business of Dairy Farming. Similarly, PW-2 Gulzar Singh and PW-3 Roop Chand have deposed in their affidavits that the deceased was running sweet shop and he was earning more than Rs. 20,000/- per month. A perusal of the record shows that there is no documentary evidence produced by the claimants to prove the net income of the deceased. Since there is no documentary evidence to prove the dairy farming, and business of agriculture and shop business, therefore the net income of the deceased has been assessed Rs. 2000/- per month. As such the income of the deceased per year comes to Rs. 24,000/- and after deduction 1/3rd as expenses on his person, net income of the deceased comes to Rs., 16,000/- per annum. Since the deceased was 52 years old as per post mortem report, therefore, the multiplier of 10 is suitable in this case and after applying the multiplier of 10 on the total income of the deceased, the total compensation comes to Rs, 1,60,000/- and the claimants are entitled to funeral expenses of Rs. 2,000/-. Therefore, total compensation comes to Rs. 1,62,000/-” Aggrieved against the same, the appellants-claimants have filed this appeal. The appellants-claimants have asserted that the compensation awarded by the Ld. Tribunal is on the lower side. The deceased, Dev Raj @ Nohria Ram was 52 years old at the time of the accident. He had been earning approximately Rs. 20,000/- p.m as he was engaged in dairy farming FAO No. 29 of 2011 4 and had been running a sweet shop. The deduction on account of personal expenses of the deceased is on the higher side, whereas the multiplier is on the lower side. Learned counsel for the appellants contended that at the time of accident, the deceased was 50 year old, hale and hearty and had been supporting his family by running a sweet shop and agriculture work and dairy farming. He submitted that the Ld. Tribunal has assessed the income of deceased as Rs. 2000/- which is inadequate. He further submitted that as per Notification dated 1.4.2011 issued by Labour Department, Punjab, the minimum wages of unskilled workers, as on 1.9.2009 were Rs. 3398/- per month and prayed that the income of the deceased is to be assessed on that figure. He submitted that the Award of the Ld. Tribunal is on the lower side and the cut applied is on the higher 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. None has put in appearance to controvert the submissions made by the learned counsel for the appellants. I have heard the learned counsel for the appellants and gone through the file. The Ld. Tribunal has rightly observed the age of the deceased to be 52 years on the basis of post-mortem report and correctly applied the multiplier of 12. Further, the Ld. Tribunal rightly observed that the accident occurred due to rash and negligent driving of respondent No.1. Both the respondents were directed to pay the compensation to the FAO No. 29 of 2011 5 claimants. However, 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 48 and 49) observed as under:- “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. 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 FAO No. 29 of 2011 6 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 annum. 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, taking into consideration, the minimum wages of unskilled workers as on 1.9.2009, as per the Notification dated 1.4.2011 and by adopting the guidelines framed by Hon'ble the Apex Court in case of Sarla Verma above, this Court feels that ends of justice would be met if the Award is modified in the following manner:- By assessing the income of the deceased at Rs. 3400/- p.m. ( Rs. 3398/- rounded off to Rs.3400/-) less 1/3rd deduction on personal expenses, the dependency comes to = Rs. 2266/- p.m Annual income = Rs. 2266 x 12 = Rs. 27200/- Rs. 27200 x 11 (multiplier) = Rs. 2,99,200/- Funeral charges enhanced to Rs. 10,000/- In view of the above, the appeal is partly allowed. The appellants will be entitled to a sum of Rs. 3,09200/-, minus the amount of compensation, if any, already received by them. The enhanced amount of compensation i.e. Rs.1,47,200/- shall be deposited by the respondents within 45 days from the date of receipt of copy of this judgment, failing which the appellants-claimants shall be entitled to interest @ 7.5 % p.a on FAO No. 29 of 2011 7 the enhanced amount from the date of filing the appeal till its realization. The enhanced amount will be apportioned in the manner determined by the Ld. Tribunal. Modified to the extent indicated. (JITENDRA CHAUHAN) JUDGE 17.10.2011 MS