High Court of Punjab and HaryanaFAO/5280/2009allowed

Kamlesh And ORS,. v. Zile Singh And ORS.

2019-05-21Ms. Justice Ritu Bahri7 pages

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH **** FAO No.5280 of 2009 Date of Decision: 21.05.2019 Kamlesh and others Appellants

Versus

Zile Singh and others Respondents CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present:

Mr. Akshat Mittal, Advocate for Mr. Sachin Mittal, Advocate for the appellants.

None for respondent No.1 inspite of service.

Ms. Jaspreet Kaur Sonal, Advocate for Mr. Ashish Yadav, Advocate for respondent No.2.

None for respondent No.3-insurer, inspite of service. **** AVNEESH JHINGAN, J (Oral):

The legal representatives of Rajiv Mohan filed this appeal under Section 173 of the Motor Vehicles Act, 1988 [for brevity 'the Act'] against award dated 10.04.2009 passed by the Motor Accident Claims Tribunal, Gurgaon [for brevity 'the Tribunal'] seeking enhancement of compensation awarded under Section 166 of the Act.

The driver, owner and insurer (i.e. ICICI Lombard General Insurance Company Ltd.) of Bus bearing registration No. HR-55F-5744 [hereinafter referred to as 'offending vehicle'] have

been arrayed as respondents No.1 to 3 respectively in the appeal. The facts emanating from the record are that on 27.11.2007, Rajiv Mohan was riding Scooter bearing registration DL-3SR-3875. he was going towards village Ismailpur. When he reached near Budha Mata, the Scooter was struck by the offending vehicle. As a result of the impact, he fell down, sustained injuries and died at the spot. FIR No.196, dated 27.11.2007 was registered at Police Station Farrukh Nagar.

The Tribunal opined that the accident was result of rash and negligent driving of the offending vehicle. The owner, driver and insurer of the offending vehicle were held jointly and severally liable to pay the compensation.

In the claim proceedings, it was pleaded that the deceased was working as Office Boy with M/s Royal Facilities Management Service, New Delhi and was getting a salary of 8,000/- per month. The claimants failed to adduce any worth reliance evidence to prove earning of the deceased. The employer deposed that he had appointed the deceased as an Office Boy but he failed to produce any record with regard to salary paid to the deceased. The Tribunal assessed monthly income of the 3,600/-; 1/3rd deduction for self-expenses was made and multiplier of '16' was applied, considering the age of mother of the deceased. A total sum of 3,12,400/- was awarded alongwith interest @ 9% per annum. The amount awarded included 10,000/- for funeral expenses and transportation.

Heard learned counsel for the parties and perused the record.

Learned counsel for the appellants contends that the income of the deceased assessed by the Tribunal is less than minimum wages for an unskilled labourer prevalent in the State at the relevant time. The grievance raised is that no future prospects have been awarded. It is submitted that the deceased was survived by four dependents, 1/3rd deduction for self-expenses has wrongly been made instead of 1/4th. Prayer is made that amounts under the conventional heads be awarded as per the decision of the Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others AIR 2017 (SC) 5157.

Learned counsel for the respondent No.2 while defending the award argues that the claimants failed to prove monthly earning of the deceased. He defends the income assessed by the Tribunal. As per the pleadings and deposition of PW-5, the deceased was working as Office Boy. There was no proof with regard to salary paid to him, in such circumstances, one of the safest yardstick is to rely upon the minimum wages prevalent in the State at relevant time. In order to award just and equitable compensation, monthly earning of the deceased is assessed as 3,800/- per month. In consonance with the decision of the Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others AIR 2017 SC 5157 and Hem Raj Vs. Oriental Insurance Company Ltd. 2018 (2) PLR 480, 40% future prospects are

awarded, as deceased fell in the category of self-employed or having fixed wages.

The deceased was survived by widow mother and three brothers and sisters who were minor at the time of accident. In such circumstances, it can be held that minor brothers and sisters were dependant on income of the deceased. As per decision of the Supreme Court in Sarla Verma and others Vs. Delhi Transport Corporation and another (2009) 6 SCC 21, 1/4th deduction for selfexpenses is made. The deceased was 21 years old at the time of accident. In view of decision of the Supreme Court in Sarla Verma's case (supra), multiplier of '18' is applied.

The issue regarding applying multiplier keeping in view the age of the deceased and not of the claimants is no longer resintegra. The Supreme Court in the case of Sube Singh and another vs. Shyam Singh (Dead) and others; (2018) 3 SCC 18 has held as under:

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- As the quantum of compensation is being revisited, it would be appropriate that compensation under the conventional heads be awarded as per the decision of the Supreme Court in Pranay Sethi's case (supra). The claimants are entitled to

Rs.15,000/- each for funeral expenses and for loss of estate. In view of above discussion, the compensation is recalculated as under:- Particulars Amount (in Monthly income of the deceased as assessed 3,800/- 40 % Future Prospects 1,520/- Sub Total 5,320/- 1⁄4 deduction for self expenses 1,330/- Monthly Dependency 3,990/- Annual Dependency 47,880/- Applying multiplier of '18'

8,61,840/- Funeral Expenses 15,000/- Loss of Estate 15,000/- Grand Total 8,91,840/- The award dated 10.04.2009 is modified to the extent that amount of 3,12,400/- awarded by the Tribunal is enhanced to 8,91,840/-.

The claimants shall be entitled to the enhanced amount alongwith interest @ 6% per annum from the date of filing of the claim petition till realization of the amount. The appeal is allowed in the aforesaid terms. [AVNEESH JHINGAN] JUDGE May 21, 2019 ! * 1 1

1. Whether speaking/ reasoned :

Yes

2. Whether reportable :

Yes