Partly allowed

Mithlesh and Anr. v. Shiv Kumar and Anr.

Punjab & Haryana HC31 Jan 2012FAO/4281/2010

Case brief

AI extract

What is this about?

An appellant mother sought enhancement of motor accident compensation awarded by the Tribunal. The Court found no evidence for the appellant's claimed higher income, upheld the Rs. 3,900 income, but corrected the dependency multiplier to 13 and adjusted deduction for a bachelor to 1/2, awarding enhanced compensation of Rs. 6,93,200.

What did the court decide?

Compensation enhanced by Rs. 69,200 to be paid within 45 days with interest at 7.5% p.a. if not received by that date.

Mithlesh and Anr. Vs Shiv Kumar… — Contract and Commercial Disputes | Punjab & Haryana HC (2012)

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FAO No.4281 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.4281 of 2010

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Date of decision: 31.01.2012

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Smt. Mithlesh and another

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...Appellants

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Versus

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Shiv Kumar and another

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...Respondents

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CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN

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Present: Mr. Tapan Kumar Yadav, Advocate, for the appellants.

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Mr. Tajender K. Joshi, Advocate, with Ms. Rajwinder Kaur, Advocate, for respondent No.2.

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JITENDRA CHAUHAN, J. (ORAL)

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The present appeal has been preferred by the claimantappellant, seeking enhancement of the amount of compensation awarded by the learned Motor Accident Claims Tribunal, Rewari, (for short, 'the Tribunal') vide the impugned Award dated 09.06.2009.

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Briefly stated, the facts of the present case are that on 08.01.2007, Ajay Singh, since deceased, was going to his Village Dhani Sundroj on a motorcycle bearing registration No.HR-36H1958. When he reached near Hari Nagar T-Point, a motorcycle

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FAO No.4281 of 2010

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make-Pulsar, bearing Engine No.18164 and Chasis No.81404, being driven by Sudhir, in a rash and negligent manner, came from Narnaul side and hit the motorcycle of the deceased. As a result of the accident, Ajay Singh sustained grievous injuries and he died on the way to hospital. FIR No.7 dated 08.01.2007 under Sections 279, 304-A IPC was registered at Police Station Rampura.

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The claimant-appellants, parents of the deceased, Ajay Singh, preferred the claim petition before the learned Tribunal, seeking compensation.

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From the pleadings of the parties, the following issues were framed:-

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1.Whether deceased Ajay son of Jaswant Singh died in a motor vehicular accident dated 8.1.2007 on account of rash and negligent driving of Motor cycle Pulsar 150, bearing Engine No. 18164, Chassis No. 81404 by its driver respondent No.1? OPP

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If Issue No.1 is proved to what amount of compensation the claimants are entitled to and from whom? OPP

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3.Whether the petition is not maintainable in the present form? OPR

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4.Whether the petition is bad for mis-joinder of necessary parties? OPR

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FAO No.4281 of 2010

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5.Relief.”

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The Ld. Tribunal decided Issue No. 1 in favour of the petitioners and against the driver of the Pulsar motorcycle.

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The Ld. Tribunal after determining the income of the deceased at Rs. 3900/- per month and after applying deduction to the extent of 1/3^rd , awarded Rs. 2,34,000/- as compensation.

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Aggrieved against the Award of the Ld. Tribunal, enhancement thereof, has been sought by way of the present appeal.

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The learned counsel for the appellants contends that the learned Tribunal erred in assessing the income of the deceased at Rs.3,900/-. It is averred that the deceased was the sole proprietor of M/s. R.K. Enterprises Brick Kiln and was earning Rs. 25,000/per month. It is further contended that the multiplier applied by the learned Tribunal is on the lower side and deserves to be enhanced.

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On the other hand, the learned counsel for the respondent-Insurance Company contends that the deceased was a bachelor and therefore, the deduction of ½ should have been applied instead of 1/3^rd .

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I have heard the learned counsel for the parties and perused the record.

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As per Ex.PW2/A, Ajay Singh, the deceased, was 22 years of age at the time of death in the said accident. He was the

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FAO No.4281 of 2010

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sole proprietor of M/s. R.K. Enterprises Brick Kiln. As per the assertion of the appellants, the deceased was earning Rs.25,000/per month, however, nothing has been produced on record to establish the income of the deceased. The learned Tribunal has assessed the monthly income of the deceased at Rs.3,900/- in view of the Minimum Wages Act. This Court feels that in the absence of any evidence regarding income, the income assessed by the learned Tribunal is just and adequate in the facts and circumstances of the present case and no interference is called for on this point.

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From the record, it is made out that the deceased was a bachelor. The learned Tribunal made deduction to the extent of 1/3^rd on account of personal expenses of the deceased. The present appeal is for enhancement of the compensation. The respondents have not chosen to file any appeal against the award. In the circumstances, the dependency of the claimants, would be ½ in the case of deceased – bachelor.

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As per the judgment of Hon'ble the Supreme Court in Shakti Devi Vs. New India Insurance Co. Ltd., 2010(4) R.C.R. (Civil) 950, where the deceased is bachelor, the age of the claimant-parents should be considered for determining the multiplier. In the present case, the father and the mother are aged 50 years and 48 years, respectively. Therefore, the correct multiplier to be applied is 13. Ordered accordingly.

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FAO No.4281 of 2010

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In view of the above discussion, the compensation towards the head 'dependency' comes to Rs.3,04,200/- (Rs.3900/X 1/2 X 13 X 12) as against the amount of Rs. 2,34,000/-.

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Another amount of Rs. 11,000/- is awarded towards 'all conventional heads' over and above the amount already granted under the heads 'loss of estate, funeral expenses and transport expenses'.

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In this manner, the claimant-appellants are held entitled to the enhanced compensation of Rs.70,200/- which shall be paid to them within a period of 45 days from the date of receipt of a certified copy of this judgment, failing which, they shall also be entitled to the interest @ 7.5% p.a. from the date of filing the present appeal, till its realization.

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With the above modification in the impugned Award, the present appeal is partly allowed.

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31.01.2012

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( JITENDRA CHAUHAN) JUDGE

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atulsethi /ms

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Note : Whether to be referred to Reporter : Yes / No.

Mithlesh and Anr. v. Shiv Kumar and Anr.

Case brief

What is this about?

What did the court decide?

Mithlesh and Anr. v. Shiv Kumar and Anr.

Case brief

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What did the court decide?

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