F.A.O. No. 6583 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 6583 of 2010 Date of Decision: December 12, 2011 The New India Assurance Company Limited .... Appellant Versus Darshana and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. V. Ramswaroop, Advocate, for the appellant. Mr. K.S.Malik, Advocate, for respondents No. 1 to 2. VIJENDER SINGH MALIK, J. New India Assurance Company Limited is before me in appeal against the award dated 20.8.2010 passed by the Motor Accidents Claims Tribunal, Rohtak (for short, "the Tribunal") vide which compensation in a sum of ` 6,55,000/- has been awarded to the claimants/respondents No.1 and 2. The claim petition brought by the Smt. Darshana and Suresh Kumar under the provisions of section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”) is based on the following averments: On 14.7.2009, at about 7.00 p.m. Jagdish (deceased) F.A.O. No. 6583 of 2010 2 .. and his son Suresh were going on separate bicycles to their village after closing the shop at Kalanaur. Jagdish was observing the traffic rules while pedalling his bicycle. When they were near railway level crossing on Mokhra road, towards Mokhra, a car bearing registration No. DDU-6998 driven by Kashmiri Lal, respondent No.1, in a rash and negligent manner came from the side of Kalanaur and had hit Jagdish on account of which he fell down on the road along with his bicycle. Suresh rushed his father to PGIMS, Rohtak but he could not survive and died on the way to the hospital. Jagdish is claimed to have been a carpenter by profession and was also doing agricultural work. He is stated to be earning a sum of ` 15,000/- per month. A sum of ` 15.00 lakhs is claimed as compensation on his death by the claimants, who are the widow and son of Jagdish (deceased). Respondent no.1 resisted the claim petition. It was asserted by him that the accident occurred on account of the negligence of the deceased himself. The same stand is reiterated by respondent No. 2, the owner of the vehicle. Respondent No. 3 has taken various pleas to claim that there has been violation of terms and conditions of the insurance policy and, therefore, it is not liable to pay compensation. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether the accident in question resulting into the death of Jagdish son of Moji Ram took F.A.O. No. 6583 of 2010 3 .. place due to the rash and negligent driving of tractor No.DDU-6998 by respondent No.1? OPP 2. If issue No.1 is proved, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether there are willful violations of the terms and conditions of the insurance company, if so, to what effect? OPR 4. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 6,55,000/- to the claimants vide the impugned award. The insurance company has challenged the quantum of compensation by way of this appeal. I have heard Mr. V. Ramswaroop, learned counsel for the appellant and Mr.K.S.Malik, learned counsel for respondents No. 1 to 2. I have gone through the record carefully. Learned counsel for the appellant has submitted that without there being any reliable evidence, learned Tribunal has taken the income of the deceased at ` 9,000/- per month. According to him, after deducting 1/3rd from this income towards the personal expenses of the deceased on himself, learned Tribunal has taken the monthly dependency of the claimants at ` 6,000/- and their annual dependency at ` F.A.O. No. 6583 of 2010 4 .. 72,000/-. He has further submitted that multiplier of 9 is applied to assess the compensation and a sum of ` 6,48,000/- is assessed as the loss suffered by the claimants in the death of Jagdish. He has submitted that after adding a sum of ` 7,000/- on account of funeral expenses and loss of consortium, a sum of ` 6,55,000/- has been awarded as compensation. According to him, though the deceased was recorded to be 55 years of age in the post mortem report (Ex. P2), yet his age was recorded as 60 years in the ration card (Ex. R1), which was prepared in the year 2005. According to him, the doctor preparing the post mortem report could commit a mistake in determining the age of the deceased and if he has recorded the same on the police information, the police officials conducting inquest proceedings could also commit a mistake in assessing the age of the deceased. Ex. R1 is claimed to contain the own admission of the deceased which gives his age as 60 years in the year 2005, which would have been 64 years at the time of accident. According to him, consequently, the age of the deceased should have been taken as 64 years at the time of accident and multiplier of 7 should have been adopted for assessing the compensation in this case. He has submitted that the compensation has, therefore, been assessed on a very higher side which needs to be reduced. Learned counsel for respondents No.1 and 2 has submitted, on the other hand, that learned Tribunal has taken the deceased as a carpenter and has taken his income at ` F.A.O. No. 6583 of 2010 5 .. 9,000/- per month. According to him, no fault could be found with the finding of the learned Tribunal in this regard. According to him, if this income is upheld, there can be no other point on which award could be assailed. He has further submitted that the deceased was 55 years of age as mentioned by the doctor in the post mortem report and the multiplier of 9 was rightly adopted by learned Tribunal. Besides the evidence of Suresh (PW-1), who has stated that his father was running a shop at Kalanaur, there is no other believable evidence on the record to prove that the deceased was doing carpenter work at Kalanaur. Pawan Kumar examined as PW-2 is stated to be the landlord of the deceased. His statement makes an interesting reading. He has stated that he is owner of one shop at Kalanaur, which was constructed by him in the year 2002. He has further stated that he had given that shop to a carpenter of Mokhra. It was strange that he did not remember the name of that person, who is stated to have since died. He has further stated that he gave the shop on payment of rent at the rate of ` 1,000/- per month and he did not issue any receipt to him. In his cross-examination, he has admitted that there was no writing regarding the letting out of the shop and every thing was verbal. He is not even paying any house tax for the shop and he did not bring any record about the shop. The statement of Pawan Kumar (PW-2) comes in direct conflict with the statement of claimant - Suresh (PW-1), who has stated that the rent of the shop was ` 1,500/- per month. F.A.O. No. 6583 of 2010 6 .. This contradiction in the face of absence of any other evidence regarding Jagdish being tenant over any shop at Kalanaur makes the evidence in this regard shaky. Even though it is believed that the deceased was running a carpenter shop at Kalanaur, there is no evidence to prove that the deceased was earning ` 9,000/- per month. For the fact that the deceased and his son were moving on bicycles, the income could not have been taken at ` 9,000/- per month. Taking into account the evidence led on the point, I cannot take the income of the deceased to be anywhere above ` 6,000/- per month. So, taking the income of the deceased at ` 6,000/-, the annual dependency of the claimant, after deducing 1/3rd from the same towards the personal expenses of the deceased on himself and multiplying the remainder with 12, comes to ` 48,000/-. The post-mortem report of the deceased (Ex. P2) mentions the age of the deceased as 55 years. His own ration card mentions his age as 60 years in the year 2005. The doctor as well as police officials, who are responsible for recording this age, could commit mistake regarding the age of the deceased because they recorded it by appearance. There is nothing on the record to suggest that the deceased gave his wrong age in his ration card. So, he is to be taken as 64 years of age on the date of accident and the multiplier available for assessing compensation in this case, as per the decision of Hon'ble Supreme Court of India in Smt. Sarla Verma and others Vs. F.A.O. No. 6583 of 2010 7 .. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77, is 7. Multiplying the annual dependency of ` 48,000/- with 7, the amount lost by the claimants in the death of Jagdish comes to ` 3,36,000/-. Adding to it a sum of ` 20,000/- for loss of consortium, loss of estate and funeral expenses, I find a sum of ` 3,56,000/- as just compensation payable to the claimants for the death of Jagdish in the aforesaid accident. Concluding my discussion on the aforesaid questions, I come to the conclusion that the compensation awarded by learned Tribunal is definitely in excess of the just compensation awardable to the claimants on the death of Jagdish. Therefore, the appeal is allowed and the amount of compensation is reduced from ` 6,55,000/- to ` 3,56,000/-, which shall be payable in the proportion and with interest as allowed by learned Tribunal. (VIJENDER SINGH MALIK) JUDGE December 12 , 2011 som