F.A.O. No. 3142 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 3142 of 2010. Date of Decision: September 22nd,2011 Jagiro Devi and others .... Appellants Versus Mam Chand and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Ravinder Malik Ravi, Advocate, for the appellants. Mr. M.S.Gill, Advocate, for respondents No. 1 and 2. Mr. Subhash Goyal, Advocate, for respondent No.3/Insurance Company. VIJENDER SINGH MALIK, J. On the death of Balbir Singh, Smt. Jagiro Devi and three others, the claimants, had brought a petition under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") seeking compensation in a sum of Rs.25.00 lakhs. The said petition was allowed by Motor Accidents Claims Tribunal, Yamuna Nagar at Jagadhri (for short, “the Tribunal”) vide award dated 20.3.2009, awarding a sum of Rs.8,62,240/- as compensation in their favour. By bringing on record a copy of judgment dated 29.7.2010, passed by this Court in F.A.O. No. 2655 of 2009 (Annexure R/1-1), the appeal filed by the Insurance Company held liable to compensate F.A.O. No. 3142 of 2010 2 .. the claimants, vide award dated 20.3.2009, is proved to have been dismissed. Now, the only appeal that remains before me against the said award is brought by the claimants for enhancement of copensation. The case of the claimants is as under : On 22.8.2007, Balbir Singh (deceased) along with one Ramesh Kumar was moving on a motor cycle bearing registration No. HR02-G-6067. Balbir Singh was driving the said motor cycle while Ramesh Kumar was occupying its pillion. At about 9 PM, they were near Toll Plaza barrier, Tajewala. In the meanwhile, a truck/tanker bearing registration No. HR-38D-0752, driven by respondent No.1, Mam Chand, in a rash and negligent manner, over took their motor cycle and thereafter stopped all of a sudden near the Toll Plaza. On account of the same, the motor cycle had rammed into the truck at its back resulting in multiple injuries to Balbir Singh. A case was got registered regarding this accident at Police Station Khizrabad. Balbir Singh had died on account of the injuries and hence the petition. The respondents resisted the claim petition. Respondents No. 1 and 2 have averred that respondent No.1 was standing with his vehicle at the Toll Plaza for paying the toll tax. According to him, Balbir Singh came from back side of the truck and struck his motor cycle against the back side of the truck. It is consequently claimed that the accident is an out-come of negligence in driving of the motor cycle by Balbir Singh. The F.A.O. No. 3142 of 2010 3 .. Insurance Company, respondent No. 3, has claimed that the insured has violated the terms and conditions of the insurance policy. Other usual objections regarding the maintainability of the claim petition etc. have been taken. On the pleadings of the parties, following issues were framed by the Tribunal, on 10.1.2008: 1. Whether the accident in question resulting into death of Balbir Singh had taken place due to rash and negligent driving of tanker/truck No. HR-38D-0752 by respondent No.1 ? OPP 2. If issue no.1 is proved to what amount of compensation the claimants are entitled to? OPP 3. Who is liable for payment of compensation? OPP 4. Whether the tanker/truck in question was being driven in violation of the terms and conditions of the insurance policy, if so, to what effect? OPR-3 5. Relief. Parties led their respective evidence. Hearing learned counsel for the parties, learned Tribunal allowed the claim petition vide award dated 20.3.2009. As already stated, a sum of Rs.8,62,240/- has been awarded to the claimants on the death of Balbir Singh. It has been noticed that Smt. Rameshwari, mother of the deceased, had made a statement on 9.3.2009 giving up her claim to a share in the compensation. So the amount of compensation was divided among the widow and two children of F.A.O. No. 3142 of 2010 4 .. the deceased. Dissatisfied with the quantum of compensation awarded to them, the claimants have brought this appeal. I have heard Mr. Ravinder Malik Ravi, learned counsel for the appellants, Mr. M.S.Gill, learned counsel for respondents No. 1 and 2 and Mr. Subhash Goyal, learned counsel for respondent No.3-Insurance Company. Learned counsel for the appellants has submitted that Balbir Singh (deceased) was working as a Phone Mechanic. According to him, his salary certificate (Exhibit P1) was proved before the Tribunal showing his income as Rs.11,275/- per month. According to him, he was 46 years old at the time of accident. He has further submitted that learned Tribunal has unreasonably deducted some personal allowances from the aforesaid amount and has taken the income of the deceased at Rs.10,690/-. According to him, learned Tribunal has adopted the multiplier of 10 while multiplier of 13 is available in this case. He has also submitted that as per ratio of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another 2009 (3) RCR (Civil) 77, the income of the deceased has to be increased by 30%, taking into account future prospects. He has submitted that the compensation should be calculated in this manner and the appeal may accordingly be allowed. Learned counsel for the respondents have submitted that the increase of 30% in income could be allowed only in case of a F.A.O. No. 3142 of 2010 5 .. permanent employee. According to them, there is nothing on record to suggest that the deceased was a permanent employee. It is submitted that the onus was upon the claimants to prove that the deceased was a permanent employee. It is further submitted that in the absence of this evidence, addition to the income towards future prospects, cannot be made. They stated at the bar to have no objection, if the multiplier of 13 is adopted in this case for assessment of compensation. However, they have contended that the deductions of personal allowances made by the learned Tribunal from the income of the deceased is justified because after his death, these amounts could not be taken as income of the deceased. While arriving at the monthly income of the deceased, the Tribunal has deducted a sum of Rs. 585/- from Rs.11,275/- shown vide certificate (Exhibit P1), to be gross salary of the deceased. The amounts deducted by the Tribunal are in the nature of Washing/Tiffin/Field allowances. These allowances could not be held to be part of the pay of the deceased, which could go to the dependents of the deceased. There are some allowances, which are incurred by the employee on himself and they cannot fall in the category of income. So, this amount has been rightly deducted by learned Tribunal. Coming to the question of making addition to the income of the deceased on account of future prospects, it has to be noticed that in Sarla Verma's case (supra), this addition is made F.A.O. No. 3142 of 2010 6 .. to the salary in different percentages depending on the age of the deceased, provided the deceased had a permanent job. In this claim petition, the claimants had examined Udayvir Singh, Accounts Officer, B.S.N.L. Ambala as PW-1. He had told about the fact that Balbir Singh was working as a Phone Mechanic. However, nothing was asked from him as to whether he was a permanent employee or he was otherwise working for BSNL on other tenure. Mere fact that the deceased was getting salary would not prove that he was permanent employee of BSNL. There is nothing available on the record from which it can be inferred that the deceased was a permanent employee at the time of his death. Therefore, the addition, as per the ratio of Sarla Verma's case (supra), cannot be allowed in this case. The multiplier adopted in this case is 10. In Sarla Verma's case (supra), the multiplier laid down for the people in the age group of 46 to 60 years, is 13. Learned counsel for the respondents also have no objection if this multiplier is adopted. Learned Tribunal has taken the annual dependency of the claimants at Rs.85,524/-. Multiplying this amount with 13, the claimants are found to have lost a sum of Rs.11,11,812/- in the death of Balbir Singh. Learned Tribunal has not awarded adequate amount for funeral expenses etc. As allowed in Sarla Verma's case (supra), a sum of Rs.20,000/- is added to this amount on account of loss of consortium, loss of estate and funeral expenses. Therefore, the appellant-claimants are found F.A.O. No. 3142 of 2010 7 .. entitled to Rs. 11,31,812/- as compensation. They shall share this amount in the manner laid down by the Tribunal in para No. 62 of the award. The claimants would be entitled to interest on this amount, as allowed by the Tribunal in para No. 63 of the award. The other terms and conditions of the award of the Tribunal shall also be applicable to this compensation. The appeal is accordingly allowed enhancing the compensation. (VIJENDER SINGH MALIK) JUDGE September 22nd, 2011 som