FAO No. 656 of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 656 of 2000 Date of decision April 5, 2011 Himachal Road Transport Corporation ....... Appellant Versus Smt. Usha Wadhwa and others ........Respondents FAO No. 1230 of 2000 Smt. Usha Wadhwa and others ....... Appellant Versus Shadi Lal and another ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Hitesh Pandit, Advocate for Mr. Rajesh Garg, Advocate for the appellant. Mr. Ashwani Arora, Advocate for respondent Nos. 1 to 3. None for respondent Nos. 4 and 5. **** 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral). 1. Both appeals are connected. FAO No.656 of 2000 is by the Transport Corporation which owned the bus that was admittedly involved in the accident and FAO No.1230 of 2000 is an appeal for enhancement for claim for compensation for death of the person who FAO No. 656 of 2000 2 was driving the private car. The claim was made by the widow, two minor children and mother of the deceased. 2. While determining the issue of involvement of the claimant the Tribunal found that the driver of the Transport Corporation responsible for the accident, he having dashed against the car, also dashed against yet another vehicle and before stopping had a collision with a scooterist. The manner in which there had been a serial collision with other vehicles, it was evident that the driver of the Transport Corporation could not control the bus and bring it to a halt suggesting that the driver of the Transport Corporation was grossly in error and was guilty of rash and negligent driving. I will uphold the finding and dismiss the appeal filed by the Transport Corporation insofar as it urges that the liability must have been placed only on the deceased or at any rate a contributory negligence must have been found on the contrary. I do not find that the deceased must take any share of blame for the accident. 3. As regards the quantum the Tribunal found that the deceased was a partner in two firms namely M/s Bombay Snuff Company, Gondia and M/s Lachhman Dass Bihari Lal, Delhi. Both the firms were engaged in the business of tobacoo products. The assessment of the firms as well as the individual assessment of the deceased had been filed before the Tribunal. The Chartered Accountant for the firms had also been examined. The documents produced showed that the income of the deceased as regards the share of products that he earned were in the range of `3.50 to `7lacs. He was drawing a salary of `72,000/- per month from M/s Bombay Snuff Company. The Tribunal reasoned into that after the death of the deceased, his wife had been admitted in the partnership and therefore there had been no resultant loss except the salary which had been denied to the family. 4. Learned counsel appearing for the claimant would FAO No. 656 of 2000 3 refer to a decision of the Hon'ble Supreme Court in Rukmani Devi and others Vs. Om Parkash and others 1991 ACJ 3 where an intervention made by the High Court by reducing the share of income which the deceased was getting on the ground that one of the family members had been inducted in partnership, was held to be faulty and the Hon'ble Supreme Court held that there was no justification to reduce the income or compensation. The Court ruled out that the income which a person was earning in a partnership must be take to be resultant loss to the family as well, irrespective of the fact that any of his legal representatives had been admitted to the benefits of partnership. This view was also affirmed subsequently in a judgment of this Court in Smt. Neelu Chandra Vs. Faquir Mohd., and another 2008 (1) RCR Civil 428. In Sushila Devi Bhatia and others Vs. Jagir Singh 1998 ACJ 622, the widow was taken as a partner with family business after the death of her husband. Following the decision of Division Bench of Kerala High Court, this Court held when the claimants had been enjoying the benefit of income from the business being dependents of the deceased, no deduction shall be made. It cannot be stated as a rule of thumb that in every case where a partner dies in an accident, the entire income earned by the partner must always be taken as relevant, even if any legal representative is admitted to the partnership. It all depends on the nature of partnership business and the degree of importance that the deceased partner wielded, his level of participation and his personal contribution to profitability and how his death would have a bearing either in the continuation of business of partnership and its profitability. In this case, it was a tabacoo business and the nature of activity was trading, where the personal skills of the deceased partner ought to have had a significant contribution. Unlike a fixed asset in the partnership yielding a regular return of income, here the death of the partner ought to have made a big difference, notwithstanding the induction FAO No. 656 of 2000 4 of his wife as a partner in the business. 5. In Neelu Chandra's case (supra) this Court had also provided for a prospect of increase in income in a case where the deceased was involved in partnership business that showed prospect of increase in income. The issue of a provision for future increase was also dealt with by the Hon'ble Supreme Court in Sarla Verma Vs.Delhi Road Transport Corporation reported in (2009) 6 SC 121 and to it sounded a word of caution for making such provision where the deceased person was involved in a private business. It suggested as a general rule that the prospect of increase of income to be applied in cases where a person had a security of tenure of office and there was a sure prospect of increase in income by Pay Commission recommendations etc. Learned counsel points out to me to the fact that the income from the firm had ranged between `3.5 lacs to `7 lacs. The income earned for the year 1997-98 just before his death added up to `4,47,665/- and after deduction of tax it was `4,40,816/-. Considering the fact that the business yielded a substantial income , I would take the average income per year after deduction of tax at 5 lacs and proceed to determine the compensation and tabulate the same as follows. I have also provided for conventional heads of claim in the manner done by the Tribunal. Age Occupation 41 Claimants Widow, 2 daughters, parents S.No. Heads of Claim Tribunal High Court 1 Income `72,000/- `5,00,000/- 2 Deduction 1/4th 3 Multiplicand `3,75,000/- 4 Multiplier 14 5 Loss of dependency `52,50,000/- 6 Loss of consortium `10,000/- FAO No. 656 of 2000 5 Age 7 Loss to estate `15,000/- `10,000/- 8 Funeral expenses `5,000/- Total 8,25,000 `52,75,000/- 6. The amount in excess of what has been awarded by the Tribunal shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. The additional amount of compensation shall be distributed amongst the wife and children only. Having regard to the fact that the accident had taken place in 1997, I will direct 75% of the amount to be distributed and the balance of 25% shall be retained in deposit in a nationalized bank for a further period of 5 years split in 5 shares, the first share for a period of 1 year, the second for 2 years and so on up to 5 years. The amount shall be paid to the above 3 persons as and when the respective deposit attain maturity. 7. FAO No.1230 of 2000 is allowed on the above terms. FAO No.656 of 2000 is dismissed. (K. KANNAN) JUDGE April 5, 2011 archana