HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 216 of 2000 and RFA No. 101 of 2001. Reserved On: 25.2.2010 Decided on: 19.3.2010 RFA No.216 of 2000 Hima Devi (dead) through LRs. Ram Chander and others ………Appellants. Versus State of H.P. and others ………Respondents. RFA No.101 of 2001 State of H.P. and another ………Appellants. Versus Hima Devi (dead) through LRs. Ram Chander and others ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. RFA No.216 of 2000: For the appellants: Mr.B.N. Mehta, Advocate. For respondent No.1 & 2: Mr.Vikas Rathour, Deputy Advocate General. RFA No.101 of 2001: For the appellants: Mr.Vikas Rathour, Deputy Advocate General For the respondents: Mr.B.N. Mehta, Advocate. Whether reporters of local newspaper may be allowed to see the judgment? Yes. - 2 - V.K. Ahuja, J.: This judgment shall dispose of both the aforesaid appeals arising out of the same judgment of the learned Additional District Judge, Mandi, dated 27.4.2000, vide which he decreed the suit of the appellant/plaintiffs for recovery of Rs.1,26,000/- as compensation by way of damages, as against the suit filed by them for recovery of Rs.4.00 lacs. Briefly stated the facts of the case are that the appellants as plaintiffs, who are the legal heirs of late Shri Man Dass, being his widow, son and daughters, filed a suit for recovery of Rs.4.00 lacs as compensation by way of damages. It was alleged by the plaintiffs that the said Man Dass died on 23.11.1994 at about 3.00 p.m. as a result of throwing of debris and boulders (stones) by defendant No.3 from Lamba Thach-Cheuni Raod from a portion just above the orchard of the plaintiffs while he was operating bulldozer being an employee of defendants No.1 and 2 for clearing the debris from the road. It was alleged that defendant No.3 was operating the bulldozer without alarming the deceased, who was working in his fields, started clearing and removing the debris above the orchard of the plaintiffs and part of the debris fell on Man Dass, who suffered injuries and died instantaneously at the spot. A report was also lodged with the police and the plaintiffs filed the suit for recovery of the amount alleging that the death of the deceased took place due to the negligence and carelessness on the part of the - 3 - defendants. The defendants denied the allegations and contested the suit. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether Man Dass died as a result of the negligence of the defendants as alleged? OPP 2. If issue No.1 is proved, whether the plaintiffs are entitled to the compensation from the defendants? If so, to what amount and from whom? 3. Whether the plaintiffs have no cause of action against the defendants? OPD 4. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 5. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction? OPD 6. Relief. Parties led their evidence and the learned trial Court, vide its impugned judgment decided issues No.1 to 5 in favor of the plaintiffs and as against the defendants and decreed the suit for recovery of Rs.1,26,000/-, alongwith interest at the rate of 12% per annum. I have heard the learned counsel for the parties and have gone through the record of the same. I may clarify at the outset that no specific challenge had been laid by the Deputy Advocate General for the respondents/State in regard to the findings of the learned trial Court holding the defendants guilty for the negligence leading to the death of the deceased, though an appeal has been preferred but nothing specific could be - 4 - pointed out and, therefore, I affirm the findings of the learned trial Court holding that the defendants were negligent in performing their duties, which led to the death of the deceased. The first point taken by the learned Deputy Advocate General appearing for the respondents was that the criteria as under the Motor Vehicles Act cannot be applied to the present facts. It was submitted that in tort, proof is on higher side and, therefore, compensation should not have been granted by applying the multiplier system as under the Motor Vehicles Act. In so far as the question of proof is concerned, there is sufficient evidence on record, which findings have not been specifically challenged and there is nothing that the proof was required on the higher side to prove the negligence which stood proved. In so far as the plea raised by the learned Deputy Advocate General for the respondents that criteria of Motor Vehicles Act cannot be applied, the said criteria does not apply strictly to the present suit filed for damages but the court cannot arbitrarily determine the amount of compensation. In coming to its conclusion, the learned trial Court had considered the criteria under the Motor Vehicles Act and determined the income of the deceased and applied the multiplier as is being applied under Section 166 of the Motor Vehicles Act. No fault can be found with the said procedure adopted by the learned trial Court. I do not think that there was anything wrong in the learned - 5 - trial Court applying the said criteria for determining just and reasonable compensation payable to the plaintiffs. Coming to the compensation in question, the learned counsel for the appellant/plaintiffs had submitted that the appellants had claimed that the deceased was earning Rs.50,000/- to Rs.60,000/- per year, but the income of the deceased was taken by the learned trial Court as Rs.2,000/- per month as in the case of an ordinary labourer though it should have been taken at least Rs.3,000/- per month. A perusal of the statement of PW-3 Smt.Hima Devi, wife of the deceased, will show that she has stated that her husband was earning and was paying to them Rs.50,000/- per year for expenses, while he used to keep Rs.10,000/- for himself. Thus, according to her, the income of the deceased was Rs.60,000/- per year. Her cross examination will show that she had stated that her husband was also having an orchard and there was no specific cross examination and her statement was not rebutted in regard to the income, as stated by her. PW-4 Smt.Ratu Devi also gave the income of the deceased as Rs.50,000/- per year. She also stated that the deceased was selling peas and potatoes, which were sold to her for Rs.10,000/- to Rs.15,000/-. Her statement also goes un-rebutted. The statement of PW-5 Hem Singh also shows that the deceased had an orchard, was selling peas, potatoes and apples and was giving Rs.50,000/- to his family and Rs.10,000/- he - 6 - used to keep for himself. He was not at all cross examined in regard to the income, as stated by him. From the above discussion, it is clear that the income of the deceased, as per these three witnesses, was Rs.60,000/- per year or say Rs.5,000/- per month. It is true that the plaintiffs have not placed on record any documentary evidence, including in regard to the land or orchard owned by the deceased, therefore, some consideration has to be made that the amount may have been stated by the witnesses at higher side. The learned counsel for the appellant/plaintiffs had placed reliance upon the decision of the Apex Court in New India Assurance Co.Ltd. versus Kalpana (Smt) and others, (2007) 3 Supreme Court Cases 538, wherein their Lordships had taken the income at Rs.4,000/- when there was no definite material in regard to the income of the deceased. In the present case, the learned trial Court has observed that the deceased may have been earning Rs.2,000/- per month and made deduction of Rs.500/- and observed that he must be giving Rs.1500/- to his family. This income was assessed at Rs.2,000/- taking the deceased as an unskilled worker, whereas the evidence suggests that the deceased was also selling apples etc. and his income has to be assessed more than an unskilled worker. Keeping in view the evidence that the deceased was earning Rs.5,000/- per month, I am of the opinion that the income of the deceased can be taken at Rs.4,500/- per month. He must be spending 1/3rd upon himself and, therefore, loss to - 7 - the family can be said to be Rs.3,000/- per month and, thus, the annual loss to the family comes to Rs.36,000/-. Coming to the multiplier, the learned trial Court has applied the multiplier of 7 keeping in view the age of the deceased as 62 years. A perusal of the decision in Supe Dei and others versus National Insurance Co.Ltd. and another, 2002 ACJ 1166, shows that though there is no claim under Section 163-A of the Motor Vehicles Act, but the second schedule can be taken as a guideline. According to the schedule under Section 163-A, if the age of the deceased is above 60 years and below 65 years, the multiplier of 5 can be applied. In a recent decision reported in Sarla Verma and others versus Delhi Transport Corporation and another, (2009) 6 Supreme Court Cases 121, their Lordships have laid down in regard to the multiplier which should be applied keeping in view the age. According to this decision, the multiplier of 7 should be applied in regard to the persons in the age group of 61 to 65 years. Therefore, the multiplier of 7 applied by the learned trial Court can be said to be appropriate. Thus, applying the multiplier of 7, the damages can be assessed at Rs.36,000 x 7 = Rs,2,52,000/-. A plea was also raised by the learned Deputy Advocate General that the interest at the rate of 12% per annum was awarded on the higher side, which deserves to be reduced. However, keeping in view the facts of the case that the deceased died at the age of 62, leaving behind the present appellants as his legal heirs, and the facts of the - 8 - case, I am of the opinion that this plea of reduction of interest cannot be considered and allowed taking a humanitarian approach to the facts of the case. In view of the above discussion, the appeal filed by the appellant/plaintiffs is allowed and they are held entitled for compensation to a sum of Rs.2,52,000/- alongwith interest at the rate and for the period granted by the learned trial Court. The appeal filed by the appellant/plaintiffs is allowed accordingly alongwith costs and the cross appeal filed by the respondents/State is dismissed. March 19, 2010. (V.K. Ahuja), (TILAK) Judge.