IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 80 of 2005. Judgment reserved on :29.5.2009. Date of decision : 18.6. 2009. Kaushalya Devi & Others. …Appellants. Versus Pardeep Kumar and others. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Appellants : Mr. V.S.Chauhan, Advocate. For the Respondents : Mr. Ashwani Pathak, Advocate for respondents No.1 & 2. Mr. Sanjeev Sood, Advocate vice Mr. K.D.Sood, for respondent No.3. _____________________________________________________________ Kuldip Singh, Judge The claimants have come in appeal for enhancement of compensation against the award dated 6.7.2004 passed by the Motor Accident Claims Tribunal, II, Solan in M.A.C. Petition No. 7-S/2 of 2003 awarding Rs.3, 94,000/- along with 9% interest from the date of filing of the petition till realization with a direction that the award amount be apportioned amongst the claimants in the manner provided in para 26 of the impugned award. 2. The facts, in brief, are that Ravinder Kumar on 16.1.2003 was travelling from Bathalang to Shalaghat in Maxi Cab HP-01-8623 which ___________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 met with an accident due to rash and negligent driving of respondent No.2. Ravinder Kumar sustained multiple injuries and died on 16.1.2003. The respondent No.1 was owner of the vehicle and respondent No.3 was the insurer of the vehicle No.HP-01-8623 at the time of the accident. The deceased was earning Rs.7000/- per month and at the time of his death, he was 32 years. The appellants are wife, children and mother of the deceased. The appellants filed claim petition claiming Rs.10,00,000/- compensation along with interest @ 12% per annum. 3. The respondents No.1, 2 had filed joint reply and took preliminary objections of maintainability. It was pleaded that respondent No.1 was not the owner of vehicle No.HP-02-8623. On merits, it was denied that the deceased was earning Rs.7000/- per month. The vehicle No.HP- 01-8623 of respondent No.1 was insured. The respondents No.1, 2 denied the claim. 4. The respondent No.3 had also contested the petition by filing reply in which preliminary objections of lack of cause of action, driver was not holding valid and effective driving licence at the time of the accident. The vehicle was not having valid registration certificate, route permit, fitness certificate. The vehicle was being plied in violation of the standard policy conditions and the Motor Vehicles Act. The impugned claim is excessive. There is collusion between the appellants and respondents No.1, 2. On merits, the income of the deceased was denied, expenses on the post death ceremonies were also denied. The respondent No.3 denied the claim of the appellants. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether on 16.1.2003 at about 8.15 P.M. near Dohra Danga on Shimla-Mandi road, Ravinder Kumar husband of the petitioner No.1, father of the petitioner No.2 and 3 and son of petitioner 3 No.4 died due to rash and negligent driving of respondent No.2, Harish Kumar the taxi driver as alleged? OPP. 2. If issue No.1 is proved in affirmative, to what compensation, the petitioners are entitled to and against whom? OPP. 3. Whether the petition is not maintainable against the respondent No.1 and 2? OPR 1 & 2. 4. Whether the taxi driver did not have a valid and effective driving licence at the time of the accident as alleged? OPR-3. 5. Whether offending vehicle was being driven in breach of standard policy conditions and in breach of provisions of M.V.Act? OPR-3. 6. Relief. The issues No.1 and 2 were answered in affirmative, issues No.3, 4 and 5 in negative and the petition was allowed, as noticed above. Hence the claimants have come in appeal for enhancement 6. Heard and perused the record. The learned counsel for the appellants has submitted that the Tribunal has assessed the income of the deceased on the lower side, the multiplier applied is also on the lower side. The deceased was earning Rs.7000/- per month and keeping in view his age multiplier of 17 is the appropriate multiplier which is also in consonance with Schedule-II of the Act. The respondents have not filed any appeal against the impugned award nor cross-objections in the present appeal. They have accepted the award, therefore, they have supported the impugned award. It has however, been submitted that the multiplier on the higher side has been applied by the Tribunal keeping in view the age of the deceased. 7. The respondents have accepted the award. They have not filed any appeal against the impugned award nor they have filed cross- objections in the appeal, therefore, the impugned award against respondents has attained finality. The limited question involved in the appeal is the quantum of compensation. PW-2 Smt. Kaushalya Sharma wife of Ravinder 4 Kumar Sharma has stated that the deceased was running Mayur Dhaba and was paying to her Rs.5000/- per month and from that amount, she was meeting the expenses of the family and educating her children. She has stated that about Rs.10,000/- were spent on the last rites of her husband. PW-3 Mohan Lal has stated that deceased was running Mayur Dhaba and he was supplying 7 kg. milk to the deceased daily. The learned counsel for the appellants has submitted that the supply of 7 kg. milk daily by PW-3 to the deceased indicates that the deceased had good business from the Dhaba. PW-3 in his statement has not stated that he had kept some dairy or cows or he otherwise deals in milk. The bald statement of PW-3 that he was supplying 7 kg. milk daily to deceased cannot be relied in order to come to the conclusion that deceased was having good business from Dhaba. There is nothing on record that deceased had kept any helper / servant for assisting him in Dhaba. In these circumstances, no fault can be found with the finding recorded by the Tribunal that the deceased was earning Rs.3000/- per month. 8. The Tribunal has deducted 1/3rd amount from the income of the deceased towards the expenses of the deceased. The deceased was having family consisting of himself, wife, children and mother. The children were school going. In these circumstances, the deduction of 1/3rd amount by the Tribunal from the income of the deceased towards his personal expenses appears to be on the higher side. On the basis of unit system, keeping in view the family of the deceased the personal expenses of deceased comes to Rs.750/- per month. Therefore, the contribution to the family comes to Rs.2250/- (Rs.3000/- - 750/-). The annual dependency of the family comes to Rs.2250 x 12 = 27,000/-. In Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya, 2005 ACJ 1441 (SC) , it has been held that the assessment of damages to compensate the dependants 5 is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that deceased might have got better employment or income or might have lost his employment or income altogether. In U.P.State Road Transport Corporation Vs. Krishna Bala and Others, (2006) 6 SCC 249, the deceased was around 36 years and multiplier of 13 was applied. The Schedule-II of the Act at the age of 32 provides the multiplier of 17. In these circumstances, no fault can be found with the multiplier of 16 applied by the Tribunal in assessing the compensation. Therefore, the appellants are entitled to an amount of Rs.27000 x 16 = Rs.4,32,000/-. The Tribunal has rightly awarded conventional amount of Rs.10,000/- to the claimants. The total amount of compensation thus comes to Rs. 4,42,000/- (Rs.4,32,000 + Rs.10,000) which shall be apportioned amongst the appellants as follows:- i) Appellant No.1 Smt. Kaushalya Sharma : Rs. 2,04,000/- ii) Appellant No.2 Master Dheeraj Sharma : Rs. 92,000/- iii) Appellant No.3 Master Jatin Sharma : Rs. 92,000/- iv) Appellant No.4 Smt. Rajni Kanta Sharma: Rs. 54,000/- Total Rs. 4,42,000/- On the above amount of compensation, the appellants shall also be entitled to interest at the rate of 9% per annum from the date of filing of the petition i.e. 25.2.2003 till realization of the amount. The vehicle involved in the accident was insured with respondent No.3, therefore, respondent No.3 shall 6 pay the entire amount of compensation along with interest. The impugned award is thus liable to be modified. 9. No other point was urged. 10. The result of the above discussion, the appeal is partly allowed. The award dated 6.7.2004 passed by the Motor Accident Claims Tribunal-II, Solan in M.A.C. Petition No.7-S/2 of 2003 is modified and an award of Rs.4,42,000/- is passed in favour of the appellants/claimants and against the respondents jointly and severally. Appellant No.1 Smt. Kaushalya Sharma shall be entitled to Rs.2,04,000/-, appellant No.2 master Dheeraj Sharma shall be entitled to Rs. 92,000/-, appellant No.3 master Jatin Sharma shall be entitled to Rs. 92,000/- and appellant No.4 Smt. Rajni Kanta Sharma shall be entitled to Rs. 54,000/- along with 9% interest from the date of filing of the petition i.e. 25.2.2003 till realization. The whole of amount of the compensation along with interest shall be paid by Respondent No.3 insurer to appellants. The award amount includes amount, if any, determined, awarded under Section 140 of the Motor Vehicles Act, 1988. No costs. June 18, 2009. (Kuldip Singh) (GR) Judge.