IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

FAO (MVA) No.138 of 2012 with

FAO (MVA) No.161 of 2012.

Judgment reserved on: 26.3.2013. Date of Decision: 3rd April, 2013.

1. FAO (MVA) No.138 of 2012.

Smt. Santosh Devi, w/o Late Sh. Shakti Prasad and others.

….. Appellants.

Versus

Himachal Pradesh Road Transport Corporation and others.

________________________________________________________________

_______________________________________________________

…Respondents.

Appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement.

For the Appellants :	Mr. B.S. Chauhan, Advocate.
For the Respondents:	Mr. Ramesh Sharma, Advocate, for<br>respondents No.1 and 3.

Mr. K.B.Khajuria, Advocate, for respondent No.2.

2. FAO (MVA) No.161 of 2012.

Himachal Pradesh Road Transport Corporation and another.

….. Appellants.

Versus

Smt. Santosh Devi, w/o Late Sh. Shakti Prasad and others.

________________________________________________________________

_______________________________________________________

______________________________________________________________________________

…Respondents.

Appeal under Section 173 of the Motor Vehicles Act, 1988, for dismissal of the claim petition.

For the Appellants : Mr. Ramesh Sharma, Advocate. For the Respondents: Mr. B.S. Chauhan, Advocate, for respondents No.1 to 3. Mr. K.B.Khajuria, Advocate, for respondent No.4.

Coram Hon'ble Mr. Justice Surinder Singh, J.

Whether approved for reporting¹ ? Yes.

Surinder Singh, J:

Both the above titled appeals have arisen from the award passed by the learned Motor Accident Claims Tribunal in MAC No.34-S/2 of 2009 decided on 28.2.2012, whereby the petition filed by Santosh Devi her adult sons, seeking compensation on account of the death of her husband Shri Shakti Prasad (51) was allowed and the learned Tribunal below awarded an amount of .4,32,000/- in favour of the claimants aforesaid, deducting the amount paid on account of no fault basis and another amount of .10,000/- paid to the claimant Santosh Devi on 4.9.2008. Further, the balance amount of award was ordered to be paid within two months from the date of award, failing which, it shall carry an interest @ 12% per annum from the date of award with cost of `.5,000/-. The amount so awarded has been ordered to be paid to the claimants in the ratio of 3:1:1.

• 2. The claimants felt aggrieved by the impugned award and filed FAO (MVA) No.138 of 2012, seeking enhancement mainly on the following grounds:-
• (i) the learned Tribunal wrongly applied the multiplier of 8 years, ignoring the judgment of Sarla Verma and Others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121];
• (ii) the conventional charges as well as consortium both were ignored;
• (iii) the interest was awarded from the date of award and not from the date of filing the petition; and
• (iv) the learned Tribunal wrongly assessed the dependency @ `.5400/- per month; it should have been on the higher side.
• 3. Whereas, the respondents- HRTC laid challenged to the impugned award on the following grounds:
  • (a) the deceased was under the influence of liquor and fell down on account of his own negligence;
  • (b) the deceased was an unskilled labourer, the dependency was wrongly calculated, the minimum wages at that time was *.90/- per day and the monthly income comes to* .2700/- per month, not 5500/ per month.

4. Learned counsel for the parties have been heard with respect to their respective submissions and I have also scanned the evidence on record.

5. First of all, I would like to take up the issue of negligence, as is being projected by the appellant-H.R.T.C. in their appeal (FAO No.161 of 2012). Though it stands proved that while travelling in the said offending bus, the deceased was drunk as proved by medical evidence. It is also proved that the bus was over crowded, therefore, some were standing. Significantly, PW3 Shri Parkash Bali, one of the passengers travelling in the said bus categorically stated that the conductor of the bus was busy in issuing the tickets. He also stated that the bus driver had been driving the bus in question rashly and negligently with resulted in sudden opening of the rear door against which deceased was standing causing sudden fall and consequently his death. This fact has been admitted by PW6 Shri Kishori Lal. He stated that he was informed by some passenger that the deceased fell-off the bus and died because of sudden opening of rear door.

• 6. On the scrutiny of the above evidence, I do find that neither the bus driver nor its conductor ensured the proper locking of the doors before he took off the bus. Further, they also did not produce any record regarding its passing and maintenance whether it was kept in proper running condition and locks of bus doors were in proper working order. Merely by saying that the bus was in good condition by the bus driver would not exonerate him/HRTC from his/ their liability to pay the reasonable compensation to the dependents of the deceased. I do not find any force in the contention raised by Shri Ramesh Sharma, learned counsel for the H.R.T.C, that the deceased was negligent, as such the findings qua rash and negligent driving of the alleged offence vehicle by its driver Kishori Lal are hereby affirmed.
• 7. Now the next question arises whether the multiplier and the dependency were rightly applied and assessed by the learned Tribunal.

8. In so far as the choice of the multiplier is concerned, the deceased Shakti Prasad is proved to be aged about 51 years at the time of the alleged accident. PW5 Sh. Daya Ram, Secretary of the Gram Panchayat concerned proved the correctness of the copy of Pariwar register Ext.PW5/A, which was prepared from the Panchayat record in his official business where his birth year is indicated as "1957". Further, in the post-mortem report of deceased Shakti Prasad is shown to be 50 years on the information supplied by Khem Raj claimant, which fact is not disputed. It is also an admitted fact that the deceased had left behind his widow and two unmarried adult sons, on the date of his untimely death.

9. The question with respect to the choice of multiplier has now been settled by the Supreme Court in Sarla Verma's (2009) 6 SCC 121 case supra. In the recent decision, the Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors. [ 2012 (6) SCC 421] after referring to the decision of Sarla Verma's case supra, wherein the formula under different headings including one relating to selection of multiplier was quoted with approval, and has been set out in para-42 which has also been further relied by the Supreme Court in Rebeka Minz and Ors. v. Divisional Manager, United India Insurance Co.

Ltd. and Anr. [AIR 2012 SC 3263 reads as under:-

"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

10.The aforesaid formula was also applied by the Supreme Court in Santosh Devi's case supra while working out compensation payable to the claimants therein without looking at the ages of the claimants but the age(s) of the claimants are only relevant when they are parents.

11. In Naina Thakur & Ors. v. Punjab Women's Welfare Colleges Board & Other [Latest HLJ 2009 (HP) 1449] , the Coordinate Bench of this Court held that the choice of multiplier has to be based on the age of the deceased or the claimants, which ever is higher. If the parents are the claimants, it is age of the parents which have to be taken into consideration while fixing the multiplier as indicated therein. Therefore, in the instant case, keeping in view the age of the deceased at the time of his death the right choice of multiplier based upon the above judgments of the apex Court would be 11 and not 8 as held by the learned Tribunal.

12. Now the next question for determination is the dependency. The 'dependence' of the legal representatives of the deceased is called dependency. It means the measure of maintenance or support which the dependants received from the deceased before his death. It can be calculated annually. Further, the compensation to be assessed is pecuniary loss caused to the dependants by the death of person and for the purpose of calculating just and reasonable compensation, annual dependency of the dependants has to be determined, keeping in view the annual loss accruing to them due to abrupt termination of life.

13. In the instant case, the deceased was an agriculturist. The claimants alleged his income .10,000/- p.m. but it remained only an assertion without any substance. Further, there is no document showing the ownership and possession of the land holding in his name or any other. The learned Tribunal out of its sheer experience rightly commented that it was not uncommon to find the claimants laying very tall claims of income of the deceased in such proceedings. Since the claim of dependents in this case qua income had been mere assertion, therefore, the deceased was rightly treated to be an unskilled labour and took due notice with respect to hike in wages in the recent years and also the gratuitous services rendered by the deceased towards his family, but in my opinion, dependency should have been .6,000/- per month, not .5,500/- and further .1,000/- per month, i.e., more than 1/5th was wrongly

• 9 -

deducted for the maintenance and the upkeep of the family members. Thus, taking the monthly income of the deceased at the rate of `6,000/ from all sources, and to arrive at the contribution to the dependents, the personal and living expenses of the deceased though required to be deducted from the income of the deceased is also to be considered, but however no evidence need be led to show the actual expenses of the deceased rather any such evidence in that behalf will be wholly unverifiable and likely to be unreliable. In Sarla Verma's case supra, it was observed by the Supreme Court that the claimants will tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. On the other hand, it would be difficult for the claimants in claim petition to produce evidence to show that the deceased was spending a considerable part of his income on himself or that he was contributing only a small part of the income on his family. Therefore, it

becomes necessary to standardise the deductions to be made under the head of personal and living expenses of the deceased. This led to the practice of deducting towards personal and living expenses of the deceased, therefore, it was held that one-third of the income would be deducted in case the deceased is married and one-half if the deceased is a bachelor, 1/4th where the number of dependent family is 4 to 6 and 1/5th where number of dependent family exceeds 6. This practice was evolved out of experience, logic and convenience. In fact, one-third deduction got statutory recognition under the Second Schedule of the Motor Vehicles Act, 1988, in respect of claims under Section 163-A of the said Act. But, it was observed that such percentage of deduction is not an inflexible rule and offers merely a guideline.

14. However, in para-30 of Sarla Verma's case supra, the Supreme Court made the following observations and laid a principle of law:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [U.P.SRTC v. Trilok Chandra : (1996) 4 SCC 362]., the general practice is to apply standardised deductions. Having considered several subsequent decision of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (1/3rd) where the number of dependant family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

15. Thus, applying the above principle in the

instant case, the deceased being a married person left behind two adult sons, i.e. dependent family are three, therefore, the deduction should have been one-fourth (1/4th) from the total monthly income of .6,000/- after deducting 1/4th amount, which comes to .4,500/- per month. The annual dependency of the claimants would be .4500 X 12 = .54,000/-, thus multiplying this annual dependency by the multiplier of 11, comes to .5,94,400/-. In addition to it, the claimants are also held entitled for love and affection to the tune of .20,000/- and claimant Santosh Devi for the consortium of .20,000/- plus .10,000/- as conventional charges, which have not been awarded by the learned Tribunal. Thus, a total amount of compensation comes to .5,78,000/- to which claimants are held entitled in the ratio of **3: 1 :1** and the amount of .50,000/ paid to the claimants Santosh Devi under Section 140 of the Act and the amount of .10,000/- as interim relief by H.R.T.C. on 4.9.2008 shall be deducted from the share of Smt. Santosh Devi. The balance amount of . 5,18,000/- shall carry an interest @ 9% per annum, from the date of filing the petition i.e. 8.7.2009 till it is deposited with costs throughout and not from the date of award as ordered by the learned Tribunal.

16. With the above modifications in the impugned award, the appeal filed by the claimants is allowed. The balance amount be deposited by H.R.T.C. within three months from today with interest, whereas the appeal filed by the H.R.T.C. is dismissed for the aforesaid reasons, so also the pending application(s), if any.

(Surinder Singh) April 3, 2013. Judge.

(Pds)