F.A.O.No.2349 of 2009 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O.No.2349 of 2009 (O&M)
Date of Decision 04.12.2009
Smt.Darshna Devi and others
...... Appellants
VERSUS
Mahender Singh and others
...... Respondents
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Kulvir Narwal, Advocate, for the appellants.
Mr.Vishal Chaudhary, Advocate,
for Mr.Vinod Chaudhary, Advocate,
for the respondent-Insurance Company.
*****
A.N.JINDAL, J(ORAL):
This appeal for enhancement is directed against the award dated
06.06.2008, passed by Motor Accident Claims Tribunal, Rohtak (herein
referred as ‘the Tribunal’) awarding compensation to the tune of
Rs.4,43,000/- alongwith interest @ 7.5% per annum in favour of the
claimants-appellants (herein referred as ‘the appellants’) and against the
respondents jointly and severally on account of the death of Yash Kumar in
a motor vehicular accident. Actually, the compensation was to the tune of
Rs.8,85,000/-, however, the Tribunal while observing that it was a case of
contributory negligence awarded compensation to the appellants to the
extent of ½.
Neither the negligence nor the liability of respondents No.1 to
pay compensation has been challenged. However, the appellants have
challenged the findings of contributory negligence as well as they have
sought enhancement of compensation.
Heard. While keeping note of the fact that it was on account of
sheer negligence of the deceased and not of the truck driver as the deceased
struck his motorcycle with stationary truck; the deceased was a pillion rider
of the motorcycle and the driver of the motorcycle struck the motorcycle in
the truck. The truck was lying parked in the middle of the road without any
parking lights and without any indicator and the accident took place at 5:00
a.m. on 07.03.2006. The definite opinion could be formed that it was not on
F.A.O.No.2349 of 2009 (O&M) 2
account of sole negligence on the part of motorcycle driver but respondent
No.1 was also at fault while parking the truck on the middle of the road
without placing any parking lights as well as indicators. Thus, the argument
advanced by learned counsel for the appellants is turned down and the
Tribunal appears to have rightly observed that the accident took place on
account of the contributory negligence on the part of motorcycle driver as
well as respondent No.1.
Now coming to the other question of quantum of compensation,
the age of the deceased, as proved by the appellants was 44 years at the time
of accident. The accident took place on 07.03.2006 and he remained
admitted in PGIMS, Rohtak from 07.03.2006 till the date of his death i.e.
16.03.2006. Smt.Darshana (PW1) widow of the deceased, stepped into the
witness box and stated that she had spend Rs.50,000/- on treatment and
transportation etc. and she had to spent Rs.25,000/- on his last rites. It has
also come in evidence that the deceased was Head Constable in Haryana
Police and was drawing a salary of Rs.9424/- per month. It is also settled by
now that it is not the carry home salary which is to be taken into
consideration for assessing the compensation as the money which was being
deducted by his department was again go to the family kitty, therefore, that
was also loss to the estate of the deceased. As such, the gross income minus
income tax is to be calculated for assessing compensation.
In the present case, no tax was to be deducted as this case did
not fall within the required slab. Learned counsel for the appellants has also
argued that by seniority, the deceased could become the Station House
Officer one day. In any case, taking into consideration the exigencies and
uncertainties of the life and the other natural factors by which his life could
be cut short, I deem it appropriate to determine his monthly income for the
purpose of determining compensation, at the rate of Rs.10,000/- per month.
As regards the argument with regard to further higher increase, the Court
could take note of the fact that the claimant was to get family pension which
could be adjusted against the anticipated increase in the salary.
As such, while examining the case from all the angles, the
monthly income of the deceased is determined as Rs.10,000/- per month.
Since the dependents upon the deceased were more than 4, therefore, his
self dependency should be determined to the extent of 1/4th. Thus, the
F.A.O.No.2349 of 2009 (O&M) 3
dependency towards the appellants comes to Rs.7500/- per month. As
regards the multiplier, the deceased was 44 years at the time of accident and
as per Apex Court judgment delivered in case Smt.Sarla Verma and
others appellants vs. Delhi Transport Corporation and another
respondents 2009 (3) RCR (Civil) 77, in case persons die within the age
group of 41 to 44, then multiplier of 14 should be applied. As such, while
applying the multiplier of 14, the compensation comes to Rs.12,60,000/-.
While adding Rs.10,000/- on account of consortium, Rs.10,000/- on account
of transportation expenses and Rs.20,000/- on account of medical and
funeral expenses, the total compensation payable to the appellants comes to
Rs.13,00,000/- Thus, on account of contributory negligence of the
motorcycle driver, the respondents would be liable to pay a sum of
Rs.6,50,000/- of compensation i.e. ½ of the compensation amount.
Resultantly, this appeal is partly accepted and the impugned
award is modified by enhancing compensation to the tune of Rs.2,07,000/-
over and above the amount in favour of the appellants and against the
respondents jointly and severally. However, the appellants would also be
entitled to receive the interest on the enhanced amount at the same rate as
awarded by the Tribunal. The remaining terms of the award passed by the
Tribunal shall remain intact. No order as to costs.
(A.N.Jindal)
Judge
04.12.2009
mamta-II