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2008 DIGILAW 975 (PNJ)

Harbhajan Kaur v. State Of Haryana

2008-05-04

K.C.PURI

body2008
JUDGMENT : K.C. Puri, J. The Motor Accident Claims Tribunal, Chandigarh vide award dated 31.1.1997 granted compensation of Rs. 13,49,502/- to the claimants on account of death of Pritam Singh Bhinder in a motor vehicle accident which had taken place on 2.9.1995. The claimants are aggrieved with the amount of compensation and hence they have filed the instant appeal for enhancement of same. 2. The brief facts of the case are that the claimants filed claim petition u/s 166 of the Motor Vehicles Act, claiming compensation of Rs. 30 lakh on account of death of Pritam Singh Bhinder which took place on 2.9.1995 on the averments that Pritam Singh Bhinder was working as a Deputy Manager (Sales) in Indian Oil Corporation, Chandigarh. He was drawing about Rs. 18,000/- month. He was going in Maruti Car No. PB-08D-1700 from Chandigarh to Ambala on 2.9.1995 when he was hit by Haryana Roadways Bus No. HR-02A-6862 near Dera Bassi on Ambala-Chandigarh Road. 3. It has been further averred that the claimants who are widow and wards of said Pritam Singh Bhinder were living with him and were dependent upon his earnings. The accident resulting in injuries and subsequent death of Pritam Singh Bhinder, was due to rash and negligent driving of respondent No. 3, who was employed as a driver by respondent Nos. 1 and 2, on their bus. 4. Respondent Nos. 1 and 2, in their joint written statement pleaded that the accident took place due to a defect in the bus which could not be foreseen by the driver of the bus. The driver of the bus had taken all reasonable care to avoid the accident. 5. Respondent No. 3, without disputing the factum of accident, pleaded that the deceased himself was negligent and hit the stationary bus as he was driving the car at an excessive speed. 6. On the pleadings of the parties, the learned Tribunal framed the following issues: 1. Whether the accident in question took place due to the rash and negligent driving of respondent No. 3? OPP 2. If issue No. 1 is proved, to what amount of compensation, the claimants are entitled to and from whom OPP 3. Relief. 7. On issue No. 1 the learned Tribunal held that the accident in question was caused due to rash and negligent driving of respondent No. 3. OPP 2. If issue No. 1 is proved, to what amount of compensation, the claimants are entitled to and from whom OPP 3. Relief. 7. On issue No. 1 the learned Tribunal held that the accident in question was caused due to rash and negligent driving of respondent No. 3. On issue No. 3, the monthly dependency of the claimants on the deceased was held at Rs. 7,028.66 and by applying a multiplier of 16, the total amount payable to the claimants was worked out at Rs. 13,49,502/-. The learned Tribunal also awarded interest at the rate of 12% per annum from the date of filing of claim petition till its realization. The respondents were jointly and severally held liable to pay the awarded amount of compensation. 8. Feeling dissatisfied with the amount of compensation, awarded by the learned Tribunal, the claimants have filed the instant appeal for enhancement. 9. I have heard arguments addressed by the counsel for the parties and have gone through the record of the case. 10. The learned Counsel for the appellants has submitted that while assessing compensation, the learned tribunal has only taken into account the basic pay and dearness allowance. The appellants have proved the total emoluments amounting to Rs. 10,543/-. The learned Tribunal should have taken into account all the allowances including house rent allowance, CCA, conveyance allowance, professional allowance, bonus etc. while calculating the amount of compensation. It is farther submitted that the learned Tribunal has not taken into account future prospects of promotion of the deceased. To fortify his arguments, the learned Counsel for the appellants has relied upon the following authorities: 1. Leela Ohri v. Punjab State Electricity Board (1999)122 P.L.R. 515 ; 2. United India Insurance Co. Ltd. v. Patricia Jean Mahajan (2002) 132 P.L.R. 281 (S.C.); 3. Harinder Kaur Dhillon and Others Vs. State of Haryana and Others, (2007) ACJ 779 ; 4. New India Assurance Co. Ltd. Vs. Bimla Devi and Others, (2006) 144 PLR 563 ; 5. Smt. Darshna and Others Vs. Raj Shah Singh and Others, (1994) 106 PLR 379; 6. Dayal Singh and Others Vs. State of Haryana and Others, (2005) 141 PLR 600 . 11. Regarding multiplier it is submitted that in view of authority reported as Vidya Rani and Ors. v. Pepsu Road Transport Corporation, Ludhiana and Anr. Smt. Darshna and Others Vs. Raj Shah Singh and Others, (1994) 106 PLR 379; 6. Dayal Singh and Others Vs. State of Haryana and Others, (2005) 141 PLR 600 . 11. Regarding multiplier it is submitted that in view of authority reported as Vidya Rani and Ors. v. Pepsu Road Transport Corporation, Ludhiana and Anr. (2007)145 P.L.R. 141 , multiplier of 16 at the age of 48 years is correct. 12. In reply to the above noted submissions, Mr. Sidhu, learned D.A.G. Haryana has submitted that the deceased was getting tea/coffee allowance, washing allowance, rationalization allowance ADJ, lunch allowance, professional allowance and the conveyance allowance, as detailed in Exhibit P-12. All these allowances were personal to the deceased. These allowances cannot be taken into account while calculating the amount of compensation. The LTC allowance is shown in Exhibit P-12 for the purpose of temporary leave travel concession. The perks shown in Exhibit P-12 are also personal in nature. So, all these allowances cannot be taken into account for calculating the amount of compensation. 13. It is further submitted that the age of the deceased, as per postmortem report, is 52 years. Even PW-2 Gulshan Kakkar has stated that the remaining service of the deceased was ten years. PW-5 Gulshan Kakkar has not been asked about the age of the deceased as the age must have been mentioned in the service record. So, an adverse inference should be drawn against the claimants. The multiplier of 16 applied by the Tribunal is on higher side and it cannot be more than ten, even according to the PW-5. A prayer has been made to reduce the amount by invoking Order 41 Rule 33 CPC. 14. I have given my careful consideration to the rival submissions made by both sides and have gone through the record of the case. 15. So far as "house rent, CCA, bonus amount is concerned, that has to be included in the amount of income while assessing the income, in view of the authorities in cases Leela Ohri, United India Insurance Co. Ltd. Harinder Kaur Dhillon, new India Assurance Co. Ltd. and Smt. Darshna (supra). 16. So, far as tea/coffee allowance, washing allowance, rationalization allowance, lunch allowance, professional ADJ allowance and conveyance allowance are concerned, these are the personal allowances to the deceased. All these expenses have to be incurred by the deceased for doing his job. Ltd. Harinder Kaur Dhillon, new India Assurance Co. Ltd. and Smt. Darshna (supra). 16. So, far as tea/coffee allowance, washing allowance, rationalization allowance, lunch allowance, professional ADJ allowance and conveyance allowance are concerned, these are the personal allowances to the deceased. All these expenses have to be incurred by the deceased for doing his job. The deceased must have to reach his place of work and for that purpose, conveyance allowance is granted. Similarly, the deceased must have taken tea during office hours and for that purpose, tea allowance is granted. So, far as washing and professional allowance etc. are concerned, these amounts would have been spent by the deceased. These allowance cannot be added. Similarly, LTC allowances cannot be taken into account as the amount is to be spent by the deceased and his family members for outing. So, the total amount of salary can be calculated as under: Basic Pay Rs. 8,815/- Deamess Allowance Rs. 1,728/- House Rent Rs. 1,983/- CCA Rs. 75/- Bonus Rs. 1,282/- Employer's Contribution to PF Rs. 1,054/- Total Rs. 14,937/- 17. So, the income of the deceased can be taken at Rs. 14,937/-, say Rs. 15,000/-. The deceased must have been spending, 1/3rd amount for maintaining himself. So, the dependency of the claimants is calculated at Rs. 10,000/- per month. The yearly dependency, thus, comes to Rs. 1,20,000/-. 18. Now, the question arises whether multiplier of 16 is correct or not. 19. The learned Counsel for the claimants has relied upon authority reported as Vidya Rani and others (supra), to justify multiplier of 16. The above said authority is not helpful to the claimants as it is not clear from the said case whether the deceased was in service. In any case, PW-5 Gulshan Kakkar has stated that the deceased had ten years of service at his credit. The claimants have not examined PW-5 Gulshan Kakkar regarding the age of deceased. In the postmortem report, the age of the deceased has been mentioned as 52 years. The age of the deceased must be taken as 50 years, in view of statement of PW-5 Gulshan Kakkar. In authority reported as Patricia Jean Mahajan (supra), the Hon'ble Apex Court has held that Second Schedule is a safe guide to calculate the amount of just compensation although the court can deviate from it in appropriate cases u/s 166. The age of the deceased must be taken as 50 years, in view of statement of PW-5 Gulshan Kakkar. In authority reported as Patricia Jean Mahajan (supra), the Hon'ble Apex Court has held that Second Schedule is a safe guide to calculate the amount of just compensation although the court can deviate from it in appropriate cases u/s 166. Therefore, keeping in view the length of remaining service of the deceased, multiplier applicable in this case should have been 11. So, the amount calculated, in this manner, comes to Rs. 13,20,000/-. The learned Tribunal has granted an amount Rs. 13,49,502/- is the just compensation awarded by the Tribunal. So far the argument advanced by the learned Deputy Advocate General to the effect that it is a fit case for reduction of the amount under order 41 Rule 33 CPC is concerned, that submission does not carry any weight in view of the calculations, made above. 20. In view of above discussion, no ground for enhancement of compensation amount is made out. Consequently, the appeal is without any merit and the same stands dismissed. However, in the peculiar facts and circumstances of this case, the parties are left to bear their own cost.