IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) FAO No.5031 of 2011. Date of Decision:
2. 9.2013. Sh. Jaswant Singh and others .... Appellants Versus Sheru alias Ravinder Singh & others .... Respondents (2) FAO No.5391 of 2011. Date of Decision:
2. 9.2013. Parminder Kaur .... Appellant Versus Sheru alias Ravinder Singh & others .... Respondents (3) FAO No.5393 of 2011. Date of Decision:
2. 9.2013. Balwinder Singh .... Appellant Versus Sheru alias Ravinder Singh & others .... Respondents (4) FAO No.5394 of 2011. Date of Decision:
2. 9.2013. Jaswant Singh and others ....Appellants Versus Sheru alias Ravinder Singh & others .... Respondents CORAM: HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Baljeet Singh, Advocate, for the appellants. Mr. R.N. Singal, Advocate, for the insurance company. NAWAB SINGH.J (ORAL) This judgment shall dispose of afore-mentioned Sanjay four appeals arising out of the same accident. 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (2) th 2. On October 13 , 2008 Charanjit Singh, his wife Sharanjit Kaur, minot son Balwinder Singh and minot daughter Parminder Kaur were proceeding from Amritsar to Ludhiana on scooter bearing not PB-10-AB-2328. Gurcharan Singh and Jaswant Singh were following Charanjit Singh on another scooter. At about 12.30 PM when they reached near Four Seasons Resort in village Fathuwal, a tanker bearing not PB-11-AE-9646 driven rashly and negligently by Sheru alias Ravinder Singh came from opposite side, steered towards wrong side and struck against the scooter of Charanjit Singh. The tanker turned turtle. As a result, the occupants of scooter received multiple injuries. Driver of the tanker fled away from the spot. All the injured were brought to Guru Nank Dev Hospitla, Amritsar. Charanjit Singh was declared brought dead.
3. The appeals are taken up in the same seriatim in which they are listed. FAO No.5031 o”
4. Charanjit Singh, aged about 35 years, a businessman having a firm in the name and style Chanda Furniture and Decoratives, Ludhiana along with his wife Sharanjit Kaur died in the accident. On his dead body, post-mortem examination was conducted vide report (Exhibit P-2). His minot children viz. Daughter Parminder Kaur, aged eight and a half years and son Balwinder Singh and parents filed claim application under Section 166 of the Motor Vehicles Act before the the Motor Accident Claims Tribunal (for short “the Tribunal”.), Amritsar.
5. The Tribunal, on the basis of income tax returns furnished by the deceased to the Income Tax Department, held the rd income of the deceased at Rs.90,000/- per year. Deduction of 1/3 was made therefrom for his personal and living expenses. The dependency was assessed at Rs.60,000/- per year. Multiplier of 17 was applied and the loss of dependency was assessed at Rs.10,20,000/-. Besides, a sum of Rs.2000/- was awarded for funeral expenses and Rs.10,000/- were awarded for loss of love and affection. In all, compensation of Rs.10,32,000/- was awarded Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (3) to the daughter, son and the parents of the deceased to the claimants in equal shares.
6. Learned counsel for the appellants has challenged the Award on the ground that while assessing income of the deceased, no increase has been given for future prospects. Compensation of Rs.2000/- for funeral expenses was on lower side and so was the case in respect of compensation awarded for loss of love and affection.
7. In support of the contention, reliance has been placed on Rajesh and others vs. Rajbir Singh and others 2013 ACJ 140.a judgment delivered by a full Bench of the Hon'ble Supreme Court.
8. On the other hand, Sh. R.N. Singal, learned counsel for the insurance company has urged that since the deceased was self-employed so, no addition of income should be made. He has relied upon a judgment delivered by a full Benchof the Hon'ble Supreme Court in Reshma Kumari and others vs. Madan Mohan and another 2013(2) RCR (Civil) 660.
9. In Reshma Kumari's (supra), the Hon'ble Supreme Court held that while making addition to the income for future prospects, the Tribunal shall follow the judgment passed in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another 2009(6) SCC 121.
10. On the point at issue, in Sarla Verma's case (supra), it has been held in paragraph No.11 as under:-
“11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (4) job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'].. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.”
11. In Rajesh's case (supra) after referring to the judgment of the Hon'ble Supreme Court in Sarla Verma, it was held in paragraph No.11 and 12 as under:-
“11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self- employed and persons on fixed wages, it is clarified that the increase in the case of those groups is No.30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (5) any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.”
12. In Sarla Verma's case (supra), it was held by the Hon'ble Supreme Court that there can be a departure while computing future prospects where the victim is self-employed or person with fixed wages in extra-ordinary circumstances and in very exceptional cases.
13. In Rajesh's case (supra) it has been held that in case where the deceased was self-employed, there should be increase of 50% in the income while computing future prospects. In view of this, an addition of 50% to actual income of the deceased is required to be given because the deceased was 34 years of age.
14. Here, in the case in hand, the deceased was running firm in the name and style Chanda Furniture and Decoratives, Ludhiana. He was an income tax payee. In times to come, his business must have flourished and his income must have increased.
15. As per income tax returns, income of the deceased was Rs.90,000/- per year. Adding 50% to it, the notional rd income of the deceased comes to Rs.1,35,000/-. 1/3 is deducted for his personal and living expenses. The dependency comes to Rs.90,000/- per year. The Tribunal fell in error in applying the Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (6) multiplier of 17 rather it should have been 16 as held in Sarla Vema's case (supra). Thus, the loss of dependency is assessed at Rs.14,40,000/- (90,000 x 16). An amount of Rs.10,000/- is awarded for the funeral expenses.
16. Since the children have lost their parents in this accident, Rs.50,000/- each are also awarded to them for loss of love and affection in view of Vimal Kanwar and others vs. Kishore Dass and others ACJ 201.1441.
17. The claimants-appellants are held entitled to total compensation of Rs.15,50,000/-. The enhanced compensation of Rs.5,18,000/- shall be paid in equal shares to Parminder Kaur and Balwinder Singh minot children of the deceased.
18. The Tribunal did not award interest on the compensation so, this Court awards interest at the rate of 7% per annum on the amount of compensation, that is, Rs.15,50,000/- from the date of filing of claim application till the earlier amount was deposited by the insurance company under the impugned Award.
19. The appeal is disposed of accordingly. FAO No.5391 in respect of injured Parminder Kaur 20. Parminder Kaur was seven years old when she suffered injuries. Unfortunately, no medical officer was examined on her behalf. She examined Darshan Singh Record In-charge, Guru Nanak Dev Hospital, Amritsar (PW-5) and Vijay Kumar, Supervisor, Deep Hospital, Ludhiana (PW-6). They proved the treatment record/bills (Exhibits PW-6/B and PW-6/C).
21. The medication record of Parminder Kaur has been perused. She was treated at Deep Hospital, Ludhiana and Guru Nanak Dev, Amritsar. She suffered fracture of shaft femur right side and fracture of tibia and fibula. There is no evidence on record showing as to how long she remained hospitalized. She placed on record medical bills issued by Deep Hospital amounting to Rs.7250/-. The Tribunal awarded her compensation of Rs.12,250/- by observing in paragraph No.9 of the Award as under:- Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (7) “As far as compensation is concerned, the claimant has placed on record two medical bills of Deep Hospital, Ex. PW-6/B and Ex. PW-6/C for Rs.6250/- and Rs.1000/- respectively. No other record of treatment of the petitioner is placed on record. Therefore the petitioner is held entitled to Rs.7250/- for her treatment of the injuries suffered by her in the accident. Besides that she is also granted Rs.5000/- for pain and suffering. In all, the petitioner is held entitled to compensation of Rs.12,250/-. Respondent No.1 being driver, respondent No.2 being owner and respondent No.3 being insurer of the offending tanker are jointly and severally liable to pay the amount of compensation to the claimants who are entitled to receive the same in equal share. Both issues No.1 and 2 are accordingly decided in favour of the claimants and against the respondent.”
22. The approach of the Tribunal in awarding compensation was fallacious. It did not even look at the medication record of the claimant. The Tribunal awarded compensation only in respect of the amount spent by the claimant on the treatment and a sum of Rs. 5000/- was awarded for pain and suffering. A judicial notice can be taken of the fact that on account of the injuries, the appellant must have undergone surgical operation and remained hospitalized for a long time. Considering nature of the injuries and age of the child (7 years), this Court awards her compensation of Rs.1,50,000/- in lumpsum to be deposited in her name in Fixed Deposit Receipts in some Nationalized Bank to which she shall be entitled on her attaining majority and in case next friends of the minot make a request to the Tribunal that some amount is required for the maintenance, upkeep and education of the minor, then future interest per annum can be given to them for that purpose. Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (8) 23. The appeal is disposed of accordingly. FAO No.5393 in respect of injured Balwinder Singh 24. Balwinder Singh, aged 9 years, at the time of accident, suffered fracture of shaft femur and fracture of shaft tibia and fabula. He got treatment in Deep Hospital, Ludhiana. He remained hospitalized for five days. Dr. Rajesh Kumar (PW-8) declared him disabled to the extent of 60%. Neeraj Kumar, Salesman, Field Range, Ludhiana (PW-6) proved medical bills (Exhibits P-5 to P-24 & P-28 to P-30) amounting to Rs.20,171/- and the hospital bill (Exhibit P-4) amounting to Rs.44,795/-. The Tribunal intended to deduct 3% from Rs.44795/- because the hospital gave concession of 3% to the patient but surprisingly, the Tribunal deducted Rs.13350/- which is more than 3% whereas it should have been Rs.1350/- that is, 3% of Rs.44795/-. It is not expected from a Tribunal that it mis-calculates the amount of compensation. This Court rectifies the mistake and awards a sum of Rs.43,445/- (44,795-1350) as hospital charges. The total compensation for treatment comes to Rs.43,445+20,171= Rs. 63,616/.
25. No compensation was awarded for transportation, special diet and attendant charges etc. so, this Court awards a sum of Rs.20,000/- in lumpsum under these heads.
26. The Tribunal did not award any compensation for pain and suffering. As has been observed earlier, the appellant was only nine years old and he lost his parents in this accident. He must have been in great agony on account of the injuries suffered by him. So, this Court awards him Rs.50,000/- under the head of pain and suffering.
27. As regards the compensation of Rs.1,20,000/- for the disability, it does not require any enhancement.
28. In view of above, the appellant-claimant is held entitled to total compensation of Rs. 2,53,616/-. The enhanced amount is Rs.82,000/-. FAO No.5394 in respect of death of Sharanjit Kaur Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (9) 29. Sharanjit Kaur was 34 years old at the time of her death. She left behind her two minot children. Her husband also died in this accident. On her dead body, post-mortem examination was conducted vide report (Exhibit P-2). She was a house wife. The Tribunal assessed her income at Rs.3000/-, that is, Rs.36,000/- per rd year. Deduction of 1/3 was made therefrom for her personal and living expenses and the loss of dependency was assessed at Rs.4,08,000/- (24000 x 17). A sum of Rs.2000/- was awarded for funeral expenses. A sum of Rs.10,000/- was awarded for loss of love and affection.
30. A Division Bench of this Court in Paramjit Singh and another vs. Dilbagh Singh alias Bagga and others FAO No.3310 of 2012 decided on May 16th, 2013 assessed the income of house wife at Rs.3000/- and also held that there should not be any deduction for her personal living and expenses. Further, as per Sarla Verma's case (supra), the appropriate multiplier in this case is 16 and No.17. Thus, the loss of dependency is assessed at Rs.5,76,000/- (Rs.3000 x 12 x 16). A sum of Rs.10,000/- is awarded for funeral expenses and Rs.50,000/- are awarded for loss of love and affection to the each child.
31. In view of above, the Award of the Tribunal is modified to the extent that the appellants-claimants are held entitled to total compensation of Rs.6,86,000/- in equal shares. The enhanced amount is Rs.2,66,000/-. The compensation amount of the children shall be deposited in their names in Fixed Deposit Receipts in some Nationalized Bank to which they shall be entitled on their attaining majority and in case next friends of the minors make a request to the Tribunal that some amount is required for the maintenance, upkeep and education of the minors, then future interest per annum can be given to them for that purpose.
32. The interest on the enhanced amounts shall be payable by the insurance company at the same rate of interest as awarded by the Tribunal from the date of filing of the claim application till the date the amounts were deposited (under the Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.5031 of 2011 (10) impugned Award) by the insurance company.
33. The appeals are disposed of accordingly. 2.9.2013. (NAWAB SINGH) SN JUDGE Whether refer to reporter :Yes Sanjay 2013.09.18 11:25 I attest to the accuracy and integrity of this document Punjab and Haryana High Court