FAO No.58 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.58 of 1989 Date of Decision. 10.01.2011 Ramji Lal son of Baldev Singh ....Appellant Versus Haryana State through Collector, District Mohindergarh at Narnaul and others Present: Mr. Jaswant Jain, Advocate for the appellant. Mr. Kunal Garg, AAG, Haryana for respondent Nos.1 and 2. Mr. Jasbir Singh, Advocate for Sanjay Mittal, Advocate for respondent No. 4. 2. FAO No.328 and 329 of 1989 3. FAO No.332 to 337 of 1989 4. FAO No.339 to 341 of 1989 5. FAO No.1128 of 1989 Ram Niwas son of Jaidayal ......Appellant Versus Mahabir Singh son of Balbir Singh and others ......Respondents Present: Mr. Jasbir Singh, Advocate for Mr. Sanjay Mittal, Advocate for the appellant. Mr. Kunal Garg, AAG, Haryana for the State Roadways. None for other respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN FAO No.58 of 1989 -2- 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. At the asking of the Court, Mr. Kunal Garg, AAG, Haryana accepts notice on behalf of the State. 2. All the appeals are at the instance of the owner of tempo, which was involved in an accident. The Haryana State Roadways was also made liable for claims arising out death of four persons travelling in the tempo. The accident was said to have taken place when the tempo turned turtle and due to some mal-functioning of the tempo when its front portion came off and the passengers were thrown out of the vehicle. Four of the persons had been run over by Haryana Roadways bus and in respect of the claim arising out of the death, the Tribunal had found the liability both on the owner of the tempo and the Haryana State Roadways and apportioned the liability equally as 50:50. As regards the claim emanating from injuries to passengers travelling in the tempo. All the claims were directed to the satisfied only by the owner of the tempo. 3. In the appeal filed by a claimant in FAO No.58 of 1989, the point urged is that the compensation awarded by the Tribunal was grossly low. The deceased was 19 years of age and said to be an agriculturist. The evidence was that he had 10 acres of land and he was cultivating the same and earning about Rs.2,000/- per month. In cross-examination, he was asked about the nature of of ownership and the evidence of the father was that his father had settled some land on FAO No.58 of 1989 -3- his own and he was himself disinherited by his father. With no documentary evidence available, the Tribunal took the income of the deceased as Rs.600/- per month, took the contribution tot he family at Rs.200/-, adopted a multiplier of 10 and granted a compensation of Rs.28,800/-. Learned counsel states that for a person, who was earning from 10 acres of land, an income assessed at Rs.600/- was grossly low. Learned counsel appearing for the appellant would rely on a decision of this Court in Major R.S. Rawat and another Vs. Tilak Raj and others 2004(2) PLR 233 that in case of death of a 6 year old boy, a compensation of Rs.2,00,000/- will be appropriate. The case related to a situation of a father having a high position in Indian Army and the prospect of the son studying upto a high level was taken note of for determining the compensation. 4. Matters relating to determination of compensation for children are wholly different for a certain projection of what the boy would have done would be relevant and this has come through decisions of the Hon'ble Supreme Court in M.S. Grewal Vs. Deep Chand Sood 2001(8) SCC 151 and Lata Wadhwa Vs. State of Bihar and others 2001(8) SCC 187. I will not find any reason to apply the principles laid down in the said two decisions, for we are here considering the case of death of a person, who was said to be earning an income through his agricultural operations. Learned counsel also refers to a decision of this Hon'ble Court in Ram Kumar and others Vs. Haryana Roadways, Chandigarh through its General Manager 2005(3) PLR 809 that determined a compensation of Rs.75,000/- for death of a minor. This decision also will have no application for the same reason as I have FAO No.58 of 1989 -4- extracted above. 5. As regards the income, first of all, there is no proof that the boy was owning 10 killas of land and that he was earning Rs.2,000/- per month. Agricultural income does not come on a monthly basis and there must be reasonableness of an approximation for what the managerial skills of a particular person operating an agricultural field would expend. If the Tribunal was taking Rs.600/- as the income at the relevant time in the year 1987, I have no better means to take a different scale for determining the income. The statutory amendment that the Motor Vehicles Act went through in the year 1994 with introduction of Schedule II provide for a a notional income of Rs.15,000/- but that amount would be applicable only in cases where an accident had taken place subsequent to the date of amendment that was brought to force from 14.11.1994. On an overall consideration, I would take the loss of income from the death of the deceased at Rs.10,000/- per annum and take the contribution to the family at 50% of the same and adopt a multiplier suitable to the age of the parent, who by that time was reported to be 45 years. I will adopt, therefore, a multiplier of 14 and I take the loss of dependence at Rs.70,000/-. I would add Rs.10,000/- towards loss to estate, funeral expenses and loss of love and affection for the loss of their only son. The Tribunal awarded Rs.28,800/- and the amount in excess over what has been determined by the Tribunal shall attract interest @6% from the date of the petition till the date of payment. The liability amongst the respondents shall be in the same manner as determined by the Tribunal as 50% against the State Transport Corporation and the 50% against the FAO No.58 of 1989 -5- owner of the tempo. 6. The appeal in FAO No.58 of 1989 shall stand allowed to the above extent. 7. As regards the appeal by the owner of the tempo, the negligence cannot be denied at all for a tempo, whose seating capacity was said to be 5, was carrying 25 persons and an accident had taken place when the front portion of the vehicle dismantled itself and the vehicle had turned turtle. The attempt of the appellant was that there was a valid policy of insurance at the relevant time of the accident and therefore, the insurance company will be only liable. The impleadment had been ordered through an application filed by the owner of the tempo at the appellate court. His contention was that a renewed policy had been taken on 13.07.1987 and the policy was valid till 12.7.1988. The copy of the policy had been filed into Court. There is no objection filed by the insurance company denying the liability or the details of the policy secured through a cover note said to have been issued on 18.7.1987. I find from the copy of the policy that the licence to carrying passengers was for 5 passengers but again the number is scored off. I am not in a position to take a definite view about the extent of liability for the insurance company in the absence of counsel for the insurance company and the inadequate details that are found in the cover note. I will, therefore, be not in a position to examine this issue to give a categoric finding whether the owner of the vehicle is entitled to indemnity for the claims emanating from the representatives of the deceased and the claims, who were injured persons. FAO No.58 of 1989 -6- 8. The liability cast on the owner by the Tribunal was under the circumstances justified but however, having regard to an additional document which is filed in Court, which would require proof and appropriate evidence to the extent of liability of the insurance company, I set aside the award and remit the matter to the Tribunal for fresh consideration in the light of any document that may be filed by the owner of the tempo and if the policy is established, the Tribunal shall pass appropriate orders on the entitlement or otherwise of the owner to be indemnified for the injuries and the death claims made on the basis of the accident. The Tribunal shall consider the extent of liability through the terms of the policy and with particular reference to the relevant provisions of the Motor Vehicles Act of the year 1939. All the appeals filed by the owner are therefore accepted and remitted to the Tribunal for fresh consideration in the light of above. It is essentially a matter of inter se dispute between the insured and the insurer and it shall not be necessary for the claimants to participate in the enquiry. The finding regarding the negligence of the driver of the tempo and the responsibility of the owner of the tempo shall stand confirmed to the extent made already by the Tribunal. The adjudication shall only be confined to the extent of entitlement to indemnity for the insured under the terms of the policy. 9. All the cases are disposed of as such. For appearance before the Tribunal on 05.02.2011. (K. KANNAN) JUDGE January 10, 2011 Pankaj*