IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 364 of 2006 alongwith FAO No. 365 and 366 of 2006. Date of decision : 2.1.2010 FAO No. 364 of 2006 National Insurance Co. Ltd. …Appellant. Versus Smt. Sunpa Devi and others …Respondents FAO No. 365 of 2006 National Insurance Co. Ltd. …Appellant. Versus Smt. Dassi Devi and others …Respondents FAO No. 366 of 2006 National Insurance Co. Ltd. …Appellant. Versus Smt. Sanehru Devi and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. In FAO No.364 of 2006 For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the respondent No1.: Mr. Harsh Khanna, Advocate. For the respondent No.4: Mr. V.S.Chauhan, Advocate In FAO No. 365 of 2006 For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the respondent No.1.: Mr. Harsh Khanna, Advocate. For the respondent No.4: Mr. V.S.Chauhan, Advocate. In FAO No. 366 of 2006 For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the respondents No.1 to 4: Mr. Harsh Khanna, Advocate. For the respondent No.7.: Mr. V.S.Chauhan, Advocate. 1 Whether the reporters of the local papers may be allowed to see the Judgment?. yes. 2 Deepak Gupta, J. (oral) These three appeals arise out of one award and are, therefore, being disposed of by one judgement. The undisputed facts are that an accident of Maruti Van No.HP-01-A-0115 took place with truck No.HP-11-4427 on 17.10.2001 near Hatkoti. The claimants are legal heirs of three persons who died in the accident. All the deceased were traveling in the Maruti Van. In fact, one of them Ramesh Kumar was the driver of the Van. The claim petitions were filed alleging that the accident has occurred due to the negligence of the driver of the truck. The learned Tribunal has allowed the claim petitions and come to the conclusion that the accident occurred due to rash and negligent driving of the truck driver and held the appellant- Insurance Company to indemnify the insured since the truck was admittedly insured with it. The Insurance Company had obtained permission under Section 170 of the Motor Vehicles Act to contest the petitions on all grounds and in these appeals the Insurance Company is challenging the award on the issues of negligence and quantum. The issue of negligence is common to all the cases. One of the claimant Smt. Sanehru Devi appeared as PW-2. According to her, the accident occurred due to the rash and negligent driving of the truck driver and the truck was at a high speed. She has been cross-examined to the effect that the truck was going uphill and was in a slow speed. A suggestion was also put to her that the van 3 was going downhill and was being driven at a high speed. She denied these suggestions. The truck driver did not appear in the witness box. The Insurance Company examined one witness who produced on record the copy of the judgement Ext.RW-3/1/B whereby the driver of the truck was acquitted in the criminal case filed against him. Evidence led before the JMIC, Jubbal in the criminal case was also produced and exhibited RW-3/1/C. Shri Ashwani Sharma, urges on the basis of the said judgement and the evidence led in the criminal case that the truck driver was not responsible. As far as the evidence led in the criminal case is concerned that cannot be looked into while deciding claim petition under the Motor Vehicles Act. Once the Insurance Company had sought and obtained permission to contest the appeal on all grounds, it should have examined the persons whose statements had been recorded in the criminal case and the statements recorded therein could have been used only for confronting the witnesses and for no other purpose. Even as far as the judgement rendered in criminal case is concerned no reliance can be placed on the same while deciding a matter under the Motor Vehicles Act. The degree of proof required in a criminal case is a much higher and the accused in a criminal case can only be convicted if he is found guilty beyond reasonable doubt. On the other hand, in a motor accident case the matter has to be decided on the basis of probabilities and preponderance of evidence. In such a matter the version which is more probable has to be 4 accepted. It would be pertinent to mention that the JMIC in its judgement himself has stated that where two inferences are possible one favouring the accused has to be taken. Therefore, this judgement cannot be used in this case. The truck driver was not examined and therefore, an adverse inference has to be drawn. The only evidence is that of the claimant Smt. Senehru Devi, who was admittedly traveling in the Van. There is no reason to disbelieve her statement. The finding of the learned Tribunal on the issue of negligence is accordingly upheld. Coming to the quantum, each appeal is now being taken up separately. FAO No. 364 of 2006 arises out of claim petition MACC No. 6-S/2 of 2003 filed by Sunpa Devi. Her son Ramesh Kumar was the owner-cum-driver of the Maruti Van which he was running as a taxi. The learned Tribunal has taken the income of the deceased at Rs.4,500/- per month. According to the claimant, the deceased was earning Rs.20,000/- per month. However, no record with regard to his income was produced. Keeping in view the fact that the deceased was owner-cum-driver of the taxi and keeping in view the fact that the accident took place in 2001 it would not be unreasonable to assess his net income from the taxi at Rs.5,000/- per month. This Court in Naina Thakur and others vs. Punjab Women’s Welfare Colleges Board and others, decided on 5 17.09.2009 considered the entire ambit of the law and the judgements laid by the Apex Court in General Manager, Kerala State Road Transport Corporation vs. Susamma Thomas, 1994(2) SCC 176, UP State Road Transport Corporation vs. Trilok Chandra, 1996(4) SCC 362 and Sarla Verma vs. DTC, 2009(6) SCC 121, and held that the choice of multiplier has to be based on the age of the deceased or the claimant, which ever is higher. In Sarla Verma vs. DTC, 2009(6) SCC 121, the Apex Court has clearly laid down that where the deceased is survived by parents only the mother would be considered to be a dependent and 50% should be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. An exception can be made in a case where the family is large but that is not so in the present case since the claimant is only the one. Therefore, the dependency of the family is assessed at Rs.2,500/- per month or Rs.30,000/- per year. Following the table approved of in Sarla verma’s case the relevant multiplier keeping in view the age of the claimant i.e. the mother which was about 48 years would be 13 and the compensation works out to Rs.3,90,000/- for loss of dependency. In addition thereto, the claimant is held entitled to Rs.10,000/- for conventional damages and Rs.5,000/- for funeral expenses, etc. She is, therefore, held entitled to Rs.4,05,000/- in all. The award of the learned Tribunal is 6 accordingly modified and reduced from Rs.5,40,000/- to Rs.4,05,000/-. FAO No. 365 of 2006 arises out of the claim petition MACC No.7-S/2 of 2003 filed by Dassi devi. She is the mother of deceased Lal Chand. Lal Chand was working as a tailor under PW- 4 in a small village. Though PW-4, Uma Nand, has stated that the deceased was working as a tailor under him and was earning Rs.7,000/- per month, his statement has rightly been not believed by the Tribunal because in a small village a tailor who is an employee could never earn this much. The Tribunal, however, assessed the income of the deceased at Rs.4,500/- per month, which I find is reasonable. Deducting 50% for the expenses of the deceased on himself the dependency works out to Rs.2,250/-. In this case the age of the claimant was about 43 at the time of the accident and therefore, multiplier of 14 would be applicable if Sarla Verma’s case is followed and the compensation works out to Rs.3,78,000/- for loss of dependency. In addition thereto, the claimant is held entitled to Rs.10,000/- for conventional damages and Rs.5,000/- for funeral expenses, etc. She is, therefore, held entitled to Rs.3,93,000/- in all. The award of the learned Tribunal is accordingly modified and reduced from Rs. 5,40,000/- to Rs.3,93,000/-. FAO No.366 of 2006 arises out of claim petition MACC No. 8- S/2 of 2003 filed by Smt. Sanehru Devi in respect of death of her husband. In this case, the deceased was an agriculturist. His 7 income has been taken at Rs.6,000/- per month and the dependency at Rs.4,000/- per month. Multiplier of only 7 has been applied, which is on the lower side. The award is in fact conservative and cannot be said to be excessive and calls for no interference. In all the cases, the claimants shall be entitled to interest @ 9% per annum on the awarded amount from the date of the filing of the claim petitions till date of deposit and costs as assessed by the learned Court below. No costs as far as this Court is concerned are being imposed. In view of the above discussion FAO Nos.364 of 2006 and 365 of 2006 are partly allowed and FAO No. 366 of 2006 is dismissed. 2nd January, 2010 ( Deepak Gupta ) ™ Judge.