F.A.O. No.525 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.525 of 2011 Date of Decision: October 13th ,2011 Smt. Bala Devi and others .... Appellants Versus Anwar and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. S.K.Rana, Advocate, for the appellants. Mr. Suvir Dewan, Advocate, for respondent No.3. VIJENDER SINGH MALIK, J. This is an appeal brought by the widow and other dependents of Mange Ram, who has lost his life in a vehicular accident that took place on 12.2.2007. The claim petition has been brought under the provisions of section 163-A of Motor Vehicles Act, 1988 (for short, “the Act”) . Learned Motor Accidents Claims Tribunal, Karnal (for short, "the Tribunal") has allowed the claim petition vide award dated 18.12.2009, awarding ` 1,69,500/- as compensation to the claimants along with interest @ 7.5% per annum from the date of filing of the petition till realization of the amount awarded. The case of the F.A.O. No.525 of 2011 2 .. claimants is as under :- On 12.2.2007, at about 2.00 AM, Mange Ram was going from Village Khora Kheri towards village Sheikhpura Khalsa in a three wheeler bearing registration No. HR-45-A-1023 driven by respondent No.1 – Anwar, in search of his buffalo, which had been stolen. When the three wheeler was near the turning of village Sheikhpura Khalsa, it turned turtle on account of its being driven in a rash and negligent manner and at a high speed. The request of Mange Ram, made earlier to that, to the driver to drive the vehicle at normal speed had fallen on his deaf ears. Mange Ram suffered serious injuries in the accident and he died at the spot. The matter was reported to the police by Daya Nand, Ex-Sarpanch, where entry of the same was made in the daily diary. It is claimed that Mange Ram was earning ` 3,300/- per month, out of which he was earning ` 2,400/- from agricultural work and ` 900/- from his dairy business. He is stated to have been keeping two buffalos. It is also claimed that a sum of ` 50,000/- was spent on transportation and cremation of the dead body and last rites of the deceased. The claim petition has been resisted by respondent No.1 and the Oriental Insurance Company Limited – respondent No.3. None appeared for respondent No.2, on the date on which the case was fixed for filing written statement on his behalf and he was proceeded against ex-parte. Respondent No.1 has claimed that on the way to village Sheikhpura Khalsa, Mange Ram and others, who were travelling F.A.O. No.525 of 2011 3 .. in the three wheeler saw some object, like a buffalo and when it was not found to be a buffalo, Mange Ram was annoyed and he started driving the three wheeler without the permission of the driver and owner of the vehicle and he had caused the three wheeler to turn turtle. Respondent No. 3 has pleaded complete denial. It is claimed that the three wheeler was not involved in the accident and it has been falsely involved to extract compensation from the answering respondent. Collusion is pleaded between the claimants and the other respondents in bringing this petition. The plea that the vehicle was being driven by a person without holding a valid and effective driving licence is also taken to avoid its liability to pay compensation. On the pleadings of the parties, the following issues were framed by the Tribunal. (1).Whether Mange Ram died in a motor accident on 12.2.2007 arising out of use of three wheeler bearing registration No. HR-45-A-1023 ? OPP (2).Whether the petitioners have suppressed true and material facts, as alleged. If so to what effect? OPR1 (3).Whether three wheeler was being plied in violation of terms and conditions of the insurance policy. If so to its effect? OPR3 (4).Whether three wheeler had no insurable interest at the time of accident? OPR3 (5).Whether driving licence of respondent No.1 was not valid and effective at the time of accident?OPR3 (6).What was the age and income of the deceased at the time of his death? F.A.O. No.525 of 2011 4 .. (7).Whether the petitioners are entitled to any compensation. If so, how much and from whom?OPPs The parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 1,69,500/- to the claimants by way of the impugned award. Dissatisfied with the award, the claimants have brought this appeal. I have heard Shri S.K.Rana,learned counsel for the appellants and Shri Suvir Dewan, learned counsel for respondent No.3 and have gone through the record. Learned counsel for the appellant has submitted that the income taken by learned Tribunal of the deceased at ` 2,500/- is not correct. According to him, this income should have been taken as ` 3,300/- as claimed by the claimants in the petition. He has submitted that the Tribunal has not adopted any multiplier to assess the compensation and has, thus, committed an error in awarding lump sum compensation. Learned counsel for respondent No.3 on the other hand has submitted that adequate compensation has been awarded to the claimants. According to him, there is no reliable evidence on record to prove that the deceased was earning ` 3,300/- per month. He has submitted that the age of the deceased is also not proved to be below 50 years and so the compensation assessed by learned Tribunal is adequate, which F.A.O. No.525 of 2011 5 .. does not deserve any enhancement. It is true that no cogent evidence has been led by the claimants to prove the deceased to be having any agriculture land. The number of buffalos he was keeping is also not proved on record. However, the deceased was an able-bodied person of the age around 50 years and learned Tribunal has fallen in error in taking his income as ` 2,500/- per month. The claimants have pleaded the income of the deceased as ` 3,300/- per month, which can at least be taken as ` 3,000/- per month. After noticing the age of the claimants, learned Tribunal has reached the conclusion that the deceased might have been of the age of 55-56 years. Ram Kumar (PW1) and Smt. Bala Devi (PW2) have claimed the age of Mange Ram as 50 years at the time of his death. It is although a statement made by the two claimants in their own favour, yet it cannot be discarded lightly. The age of the deceased has been mentioned as 55-56 years in the post mortem report. This age is assessed by the doctor by the appearance of the deceased and it cannot be taken to be correct. People from the lower sections of the society, where income is meagre, look older to their age and there may be a mistake of 1 or 2 years on the part of the doctor in assessing the age of the deceased. Therefore, the age of the deceased could not be taken to be above 55 years and as per the second schedule, the multiplier of 11 was applicable to this case for assessment of compensation. F.A.O. No.525 of 2011 6 .. Consequently, taking 2/3rd of the income of ` 3,000/- of the deceased as monthly dependency of the claimants, the annual dependency of the claimants comes to ` 24,000/- and multiplying it with 11, it comes to ` 2,64,000/-. Adding to it a sum of ` 9,500/- allowed by the second schedule in the name of loss of consortium, funeral expenses and loss of estate, I find the claimants to be entitled to ` 2,73,500/- as compensation on the death of Mange Ram. As a result, the appeal is allowed, enhancing the compensation from ` 1,69,500/- to ` 2,73,500/-, which shall be payable by respondent No. 3 with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization of the amount awarded. The same shall be shared by the claimants as per the terms mentioned in para No. 25 of the award of the Tribunal. (VIJENDER SINGH MALIK) JUDGE October 13th, 2011 som