IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No. 447 of 2003. Judgement reserved on: 4.6.2008. Date of decision: 6.6.2008. Smt. Kamal Jeet ….. Appellant. Vs. Smt. Susheela Devi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. R.K. Gautam, Sr. Advocate with Mr. Naveen Bhardwaj, Advocate. For the Respondents : Mr. A.K. Bansal, Advocate, for respondents No. 1 & 2. Mr. B.M. Chauhan, Advocate, for respondent No.3. Kuldip Singh, Judge. This appeal has been filed for enhancement by claimant against award dated 7.1.2003 passed by learned Motor Accident Claims Tribunal, Bilaspur in M.A.C. Case No. 42 of 2001, whereby an amount of Rs.1,20,000/- has been awarded to claimant, which is, to be paid by respondent No. 3 insurer with the direction to respondent No. 3 to deposit the amount of compensation within two months from the date of order failing which 9% simple interest shall be payable on the amount of compensation from the date of award. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The facts in brief are that Sanjay Kumar aged 21 years son of appellant- claimant was driving his three wheeler and was earning Rs.5000/- per month from all sources. On 15.3.2001 Sanjay Kumar was going from Bilaspur to Jabli and PW 2 Ravinder Kumar was with him in the three wheeler, Sanjay Kumar was driving the three wheeler. At place Dholera at about 10.00 p.m. on 15.3.2001 truck bearing registration No. HIB-535 owned by respondent No. 1 which was being driven at that time by respondent No. 2 in a rash and negligent manner hit the three wheeler, in the accident Sanjay Kumar suffered multiple injuries and succumbed to his injuries on the spot. The respondent No. 3 was the insurer of the truck at the time of the accident. The appellant was dependant on deceased Sanjay Kumar and, therefore, she filed petition claiming compensation Rs.10,00,000/- from the respondents. 3. The respondents No. 1 and 2 contested the petition by filing joint reply and took preliminary objections of maintainability, lack of cause of action, non-joinder of necessary parties for not impleading owner, insurer of the three wheeler. The truck bearing registration NO. HIB-535 was comprehensively insured with respondent No. 3, therefore, liability if any is of the insurer, the driver of the auto was not having valid and effective driving licence. The respondents No. 1 and 2 admitted the accident, but submitted that accident took place due to rash and negligent driving of the auto driver. It has been pleaded that compensation claimed is excessive. The respondent No.3 in its separate reply has also taken preliminary objection of maintainability, lack of cause of action, non-joinder of necessary parties, the …3… respondent No.3 denied having issued any insurance policy. The truck in question was being driven by an unauthorized person, who had no valid and effective driving licence. The truck did not have valid registration and fitness certificate. The three wheeler did not have a valid registration certificate, fitness certificate, route permit nor the deceased was having a valid and effective driving licence to drive three wheeler. On merits, the respondent No. 3 denied the claim of the appellant. The appellant filed separate rejoinders to the two sets of replies and reiterated her case set up by her in the petition. The learned Tribunal allowed the petition and awarded a sum of Rs.1,20,000/- by way of impugned award, as noticed above, the appellant has come in appeal for enhancement of amount of compensation. 4. I have heard Mr. R.K. Gautam, learned Senior Counsel assisted by Mr. Naveen Bhardwaj, Advocate, for the appellant, Mr. A.K. Bansal, Advocate, learned counsel for respondents No.1 & 2, Mr. B.M. Chauhan, learned counsel for respondent No.3 and gone through the record. On behalf of the appellant, it has been submitted that deceased was earning Rs.5,000/- per month and in these circumstances, keeping in view the age of the deceased and that of the appellant, the learned Tribunal has awarded less compensation. The interest awarded by the learned Tribunal is conditional, which is not permissible in law. The learned Senior counsel appearing on behalf of the appellant has prayed for enhancement of compensation. The learned counsel for respondent No.3 has submitted that just compensation has already been awarded by the learned Tribunal to …4… the appellant keeping in view the age and income of the deceased and the age of appellant. The appellant was not wholly dependant on the deceased and, therefore, she is not entitled to enhancement of compensation. 5. PW 1 Smt. Kamal Jeet at the time of her statement before the learned Tribunal on 25.2.2002 has given her age 41 years and has also stated that deceased was earning Rs.5000/- per month by running his three wheeler. She has stated that the deceased used to pay the entire amount to her. In the cross examination, she has stated that her husband is employed as a Laboratory Attendant at Government Hospital, Jabli and she herself is working as Class IV employee in medical department at Namhol. She has led no worth believing evidence to prove that deceased was in fact earning Rs.5000/- per month by plying three wheeler and he was paying the said amount to the appellant. She has shown her ignorance regarding the salary of her husband but has admitted that she was drawing Rs.7,000/- per month as salary. 6. PW 2 Ravinder Kumar has stated that he was running an auto rickshaw at Bilaspur for the last two years. He has stated that at the time of accident, he was travelling with the deceased in his auto rickshaw. They used to earn Rs.200/- per day by running three wheeler. PW 2 Ravinder Kumar has stated that three wheeler bearing No. HP-05-338 was owned by Anish Mohammad, but the deceased had purchased the said three wheeler from Anish Mohammad. Ex. PF is the photo copy of agreement dated 13.3.2000 …5… regarding sale of three wheeler HP-05-338 by Anish Mohammad to Sanjay Kumar. 7. The claimant has not placed any reliable evidence on record to show that deceased Sanjay Kumar was earning Rs.5000/- per month by plying three wheeler and he was paying whole of the amount of Rs.5,000/- to the claimant. The oral statement of the claimant in this regard is not sufficient. The learned Tribunal in the impugned award has noticed the statement of PW 2 Ravinder Kumar and has recorded a finding that deceased must be paying Rs.1000/- per month to his parents. The learned Tribunal after observing that deceased would have married within two or three years, hence the Tribunal has awarded lump sum amount of Rs.1,20,000/- to the appellant without recording reasons how the amount of Rs.1,20,000/- has been calculated. 8. PW 2 Ravinder Kumar was also running a three wheeler. He has stated that they were earning Rs.200/- per day. This being the position, then from Rs.200/- per day, running expenses of three wheeler, repairs etc. are to be excluded. Therefore, taking all factors into consideration the deceased must be earning Rs.100/- per day after excluding running expenses etc. of the three wheeler. He had already purchased three wheeler from the previous owner vide agreement Ex. PF dated 13.3.2000. In other words, deceased Sanjay Kumar was earning Rs.3,000/- per month. In New India Assurance Company vs. Prem Chand and others Latest HLJ 2007 HP 1046, a Division Bench of this Court has held that in normal circumstances when the parents are the claimants, their dependency …6… is to be assessed at 1/3rd of the total income. This is because the child would in normal course get married in near future. After the marriage the deceased would have had his own spouse and family to look after and would not contribute that much amount to the parents. The normal rule is that the dependency of the parents should not be taken at more than 1/3rd of the total income. In the present case, it has come on record that appellant was not wholly dependant on the deceased, the appellant herself was employed so also her husband. Therefore, her dependency on the deceased could not be more than Rs.1000/- per month. In H.S.Ahammed Hussain and another vs. Irfan Ahammed and another 2002 (6) SCC 52, the age of the victim Vazeer was 22 years and that of his mother 45 years, the Hon’ble Supreme Court has allowed multiplier of 15 in the compensation case filed by the parents of Vazeer. In the present case, the deceased was born on 2.4.1979 as per his matriculation certificate Ex. PC. Hence, on the date of accident i.e. 15.3.2001, the age of the deceased was about 22 years. Therefore, keeping in view the age of the deceased and that of the appellant- claimant, 15 is just and appropriate multiplier. In these circumstances, the appellant is entitled to Rs.1000 x12 x15 = Rs.1,80,000/-. In addition to this, the appellant is also entitled to lump sum Rs.15000/- on account of loss of natural love and affection, funeral expenses etc. Thus in all, the appellant is entitled to Rs.1,95,000/- compensation on account of death of her son Sanjay Kumar. On this amount of Rs.1,95,000/-, the appellant is entitled to 9% interest from the date of filing of the petition i.e. 28.4.2001 till payment. The truck was insured with …7… respondent No. 3 insurer and the learned Tribunal has already recorded a finding that accident was caused due to rash and negligent driving on the part of the truck driver and insurer of truck No. HIB-545 is liable to pay the compensation amount to the appellant. The owner, driver and insurer of the truck have accepted the impugned award as they have not filed any appeal against the impugned award. The learned Tribunal has not properly appreciated the material on record regarding the quantum of compensation. In these circumstances, the impugned award deserves modification. 9. No other point was urged. 10. As a result of the above discussion, the appeal is allowed. The impugned award is modified and it is held that appellant is entitled to Rs.1,95,000/- compensation alongwith 9% interest from the date of filing the petition i.e. 28.4.2001 to be paid jointly and severally by respondents No. 1 to 3. The truck No. HIB 535 was insured with respondent No.3- insurer, therefore, whole of the amount of compensation of Rs.1,95,000/- alongwith 9% interest from the date of institution of the petition i.e. 28.4.2001 till deposit/ payment shall be paid by respondent No. 3- insurer to the appellant. No orders as to costs. June 6, 2008. ( Kuldip Singh ) (Hem) Judge.