FAO No.2216 of 1996 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2216 of 1996 (O&M) DATE OF DECISION: December 9, 2010 CHARAN KAUR AND OTHERS ...APPELLANTS VERSUS RAM DASS AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement. Yes/No 2. To be referred to the reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. VIJAY SINGH, ADVOCATE FOR MR. ASHISH AGGARWAL, ADVOCATE FOR THE APPLICANT-APPELLANTS. MR. R.K. BASHAMBOO, ADVOCATE FOR RESPONDENT NO.3-INSURANCE COMPANY. K.KANNAN, J.(ORAL) C.M. No.27043-CII of 2010 Application for restoration of appeal is allowed. FAO No.2216 of 1996 1 The appeal is for enhancement of compensation for the death of driver who was driving new chassis made for delivery to customer. The Tribunal found the deceased as having contributed to the accident and after determining the compensation on the basis that he has earning of Rs.1500/- per month, made partial abatement for his own negligence and awarded Rs.86,400/- with interest @ 12% per annum. 2. Learned counsel appearing for the appellant contends that both as regards the issue of negligence as well the quantum, the Tribunal was in FAO No.2216 of 1996 (O&M) -1- error. As regards the issue of negligence, the evidence was that the deceased driver was overtaking yet another vehicle which was going ahead of him and on seeing that there was a Maruti car which was coming from the opposite direction, swerved to left after putting an indicator and cautioning the truck to apply brakes to prevent collision. However, the truck still drove on and dashed against the bumper of the chassis. The driver got thrown out of the chassis vehicle and got crushed between the chassis and tree. Learned counsel points out that the truck driver had not been examined and therefore, the Tribunal must have cast the entire responsibility only against the driver of the truck. 3. The non-examination of the truck driver in this case, in my view, does not make a difference. The manner in which the accident is narrated itself shows that it was a case of poor judgement by the deceased in attempting to overtake the vehicle at a time when there was an on-coming Maruti car from the opposite direction and the accident had taken place only because he was unable to overtake the truck and swerved towards left and in the process had made truck driver dash against his own vehicle and ultimately suffered injuries to which he succumbed. The Tribunal has correctly dealt with the issue of negligence and has found the deceased to have been equally responsible for the accident and apportioned the liability as 50:50. I uphold the said finding relating to negligence. 4. On the issue of quantum, the evidence that had been placed on behalf of the claimant was the certificate issued by the India Convey Workers Union that the monthly income of the deceased was Rs.1980/-. The widow had given evidence that her husband was earning Rs.3000/- per month. He was authorized to drive commercial vehicles and when there had FAO No.2216 of 1996 (O&M) -1- been a clear documentary evidence relating to the salary that he was drawing, the Tribunal was in error in merely taking the income to be Rs.1500/-. I will take, therefore, the income of the deceased as stated in the certificate at Rs.2000/-, provide for deduction of 1/4th since he supported large family consisting of his wife and four minor children and take the contribution as Rs.1500/-. Even as regards, the choice of multiplier the Tribunal had taken merely 12 as multiplier. Instead I would take the multiplier as 16 in the manner provided by the decision of the Hon'ble Supreme Court in Sarla Verma vs. DTC, reported as (2009) 6 SCC 121. The total loss of dependence would, therefore, be 2,88,000/-. I will add Rs.5000/- towards loss of consortium and provide for Rs.2500/- for each of the four minor children. I will add a further sum of Rs.5000/- towards loss of estate and Rs.2500/- towards funeral expenses. In all the total sum will be Rs.3,10,500/- and by virtue of the fact that the deceased had contributed to the accident, there shall be a partial abatement of the claim by ½ which would mean that the amount that will be payable to be Rs.1,55,250/-. The Tribunal has awarded an amount of Rs.86,400/-. The amount in excess of what has been awarded to the claimants shall bear interest @ 6% from the date of filing of the petition till the date of payment. The amount shall be distributed amongst all the claimants equally. 5. The appeal is allowed to the above extent. December 9, 2010 (K.KANNAN) Gulati JUDGE