Judgment:
Sarojnei Saksena, J.
1. In the vehicular death of Kewal Singh on 18.8.1980 at 6.00 P.M. in village Hathur, his wife Rajinder Kaur and three minor children preferred their claim of Rs. 21 lacs. By the award dated 6.10.1984, they were granted compensation of Rs. 1,53,600/-. In this accident truck No. PUC-5807 was involved, which was owned by respondents Dalip Singh and Bhajan Singh and was insured with respondent No. 3-National Insurance Company.
2. Being aggrieved by this award, the Insurance Company has filed F.A.O. No. 22 of 1985. The driver and owners have filed F.A.O. No. 20 of 1985. Claimants have also filed cross-objections under Order 41 Rule 22, Civil Procedure Code. Both these appeals and cross-objections are decided by this judgment.
3. Brief facts of the case are that Kewal Singh- running his private Workshop of repairing motor-cycles in one portion of a residential house in village Hathur. He was residing with his family members therein. On 18.8.1980 at 6.00 P.M. when he was working in front of his workshop, truck No. PUC-5807 dashed against him.
He succumbed to his injuries on the spot, though he was taken to hospital where he was declared dead. Respondent No. 1-Nirmal Singh was driving the said truck rashly and negligently, which resulted in this fatal accident. The claimants also averred that Kewal Singh was earning about Rs. 3000/- per month from his work-shop.
4. Respondents 1, 2(a) and 2(b) filed joint written statement and denied that the truck bearing No. PUC-5807 was involved in this accident. They alleged that on 18.8.1980 Nirmal Singh was not driving this truck, it was parked at his residence. No doubt, criminal case under Section 304-A, Indian Penal Code, was registered against the driver, but he was acquitted therein. Respondent No.3-Insurance Company denied its liability averring that the vehicle involved in the accident was not insured with the Company. The Company also pleaded inter alia that its liabilities is limited to the extent of Rs. 1,50,000/- only. All these respondents raised a plea that the claim is time barred.
5. Issues were framed; parties adduced evidence. The Claims Tribunal decided issue No. 1 in favour of the claimants holding that Kewal Singh died due to rash and negligent driving of Nirmal Singh. At that time, he was driving the truck No. PUC-5807, which is owned by respondents 2(a) and 2(b) and is insured with respondent No. 3.
6. So far as compensation is concerned, the learned Tribunal held that no doubt Rajinder Kaur-claimant has deposed that her husband was runing his workshop and his monthly income was Rs. 3000/-, but she admitted that he was not paying income tax and hence, on this ground, the monthly income of the deceased was assessed at Rs. 1500/-. Rs. 300/- were deducted towards maintenance of the workshop. Out of remaining Rs. 1200/- 1/3rd was deducted for personal expenses of the deceased. Thus, the monthly dependency was assessed at Rs. 800/-. Applying multiplier of 16, the Claims Tribunal awarded an amount of Rs. 1,53,600/- The Claim tribunal also held that the respondents are jointly and severally liable to pay this amount of compensation to the claimants and he further clarified that the liability of the Insurance Company is limited to the extent of Rs. 1,50,000/- only. According to the learned Tribunal, if the amount is not paid within three months, it shall be recoverable with interest at the rate of 12 per cent per annum from the date of award.
7. In both the appeals, common questions of law and facts are raised. The appellants have submitted that the claim petition was time barred as the accident took place on 18.8.1980 and the claim petition was filed on 16.4.1981. The trial Court wrongly condoned the delay. In the first Information Report, the offending vehicle was shown as PUL-5807, while the truck which was owned by respondents 2(a) and 2(b) and insured with respondent No. 13 was PUC-5807. In the First Information Report, many eye witnesses were named, but none is examined by the claimants. Only Rajinder Kaur stepped into the witness box and claimed that she is an eye witness of the accident and she has lodged the report, but the fact is that the First Information Report was lodged by Harbans Singh. The tribunal fell into an error in relying upon uncorroborated testimony of Rajinder kaur PW-1. It is also objected that the income of the deceased Kewal Singh is assessed on a higher side. There was no proof of age of the deceased, but the Tribunal held that he was aged 24 years; the dependency is also determined on the basis of mere conjecture; multiplier of 16 is wrongly applied.
8. In cross-objections, the claimants averred that the deceased was running his workshop of motor-cycles, cars and trucks etc. The tribunal returned a finding that his income was Rs. 1500/- per month. The tribunal wrongly deducted Rs. 300/- per month on maintaining infrastructure of the workshop. This amount of Rs. 1200/- was further reduced by 1/3rd for personal expenses of the deceased. Thus, the dependency was determined at Rs. 800/- per month, which is on a lower side. The claimants claimed that a multiplier of 20 should have been applied in this case.
9. During arguments, the appellants' learned counsel in both the appeals vehemently argued that age of the deceased was not proved. The learned tribunal has held that age of the deceased was 24 years. There was no evidence on record to prove his age as 24 years. Respondents examined Pritam Singh RW-3, who deposed on oath that age of Kewal Singh was 35 years. Even in the post mortem report, his age is mentioned as 25 years. Thus, according to them, the learned tribunal fell into an error in holding that age of the deceased was 24 years.
10. Appellants' learned counsel also submitted that Pritam Singh RW-3 is Lambardar of village Hathur, where the deceased was residing. He has also stated that the deceased told him that he is earning Rs. 400/- to Rs. 500/- per month. The learned tribunal has brushed aside this evidence only on this count that this witness has not stated as to when this disclosure was made by the deceased to him. He was not cross-examined by the claimants on this point. Thus, the tribunal should have assessed the dependency of the claimants out of monthly income of the deceased amounting to at the most Rs. 500/- per month. The learned counsel objected that the tribunal has wrongly condoned the delay in filing the claim petition. During arguments, they admitted that the truck bearing No. PUC-5807 was involved in this accident.
11. The claimants learned counsel argued that no doubt, claimant-Rajinder Kaur has not stated a word about the age of the deceased. She testified that the deceased's grand father is aged 90 years, his father is 65 years and in the post mortem report, his age is mentioned 25. Thus, according to him, if the trial Court has held that the age of the deceased was 24 years, there is no reason to disturb this finding.
12. So far as income of the deceased is concerned, counsel submitted that the learned tribunal has rightly disbelieved the statement of RW-3 Pritam Singh. He made a statement that the deceased told him once that his monthly income is from Rs. 400/- to Rs. 500/-, but he has not deposed as to when this disclosure was made to him by the deceased, if in the beginning of the workshop, he made such a statement, it might be correct at that time but Rajinder Kaur has proved his income at the time of the accident. According to her, he was earning Rs. 3000/- per month. The learned tribunal has not relied on this statement on this count alone that the deceased was not paying income tax. Even if his monthly income is taken to be Rs. 1500/-, there was no reason to deduct Rs. 300/- on account of the maintenance of the workshop. As his age was 25 years only, the multiplier of 18 should have been adopted. To substantiate this argument, he has relied on U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors., (1996-2)113 P.L.R. 537.
12. Claimants' learned counsel also submitted that the learned tribunal has not fallen into an error in condoning the delay. At the time of accident, she was in the family way. After accident, she was turned out of the matrimonial home. Hence, she went to her parental home. As she was in the confinement, she could not file the petition within the limitation of six months; there was no other male member to support her, hence, she could file the application only on 16.4.1981 whereas the accident took place on 18.8.1980. There is hardly delay of two months, which was rightly condoned by the learned tribunal. He also submitted that the interest from the date of claim petition should have been granted and that too at the rate of 12 per cent per annum.
13. So far as point of delay is concerned, no doubt, accident took place on 18.8.1980 and the claim petition was filed on 16.4.1981. There was delay of about two; months only. The claimant Rajinder Kaur stated on oath that at the time of accident, she was pregnant; she was in the confinement period; there was no body to help her and therefore, the petition was filed late after the statutory period of six months. Even RW-2 Bhajan Singh has admitted in cross-examination that after the accident, she was turned out of the matrimonial home. Hence, in my considered view, the learned tribunal has rightly condoned the said delay.
14. During arguments, the appellants' learned counsel admitted that the truck bearing No. PUC-5807 was involved in the accident. So far as reliance on uncorroborated testimony of Rajinder Kaur is concerned, no doubt, in the First Information Report, few persons are named as eye witnesses and the first Information Report was lodged by Harbans Singh, but Rajinder Kaur herself stated on oath that at the time of accident, she was present on the scene of occurrence, she saw accident herself and reported the matter to the police. She has not said that she lodged the First Information Report. As she was residing in the other portion of the workshop, hence, her presence on the spot is natural. The trial Court has rightly believed her on this point. The other witnesses named in the First Information report were eye witnesses to the accident. So far as finding on issue No. 1 are concerned, that is not assailed in these appeals. Even if, those eye witnesses are not examined, it is not going to affect the decision.
15. The trial Court has held that no doubt, Rajinder Kaur has testified that income of her husband was Rs. 3000/- per month, but as she has admitted that he was not paying income tax, the tribunal assessed his monthly income at Rs. 1500/-. No doubt, even respondents' witnesses have admitted that he was repairing tractors, trucks, motor-cycles, scooters etc.; he was running his workshop in the village, but no documentary evidence is produced to prove monthly income of the deceased.
16. Thus, in my considered view, the trial Court has not fallen into any error in determining the monthly income of the deceased at Rs. 1500/-. Since he was running a workshop, he must be spending some amount on the upkeep of the workshop and its infrastructure, must be purchasing some implements, some instruments, some tools etc. off and on. The learned tribunal has rightly deducted Rs. 300/- per month on the maintenance of the workshop. Thus, the monthly income of the deceased is rightly determined at Rs. 1200/- The tribunal has deducted 1/3rd out of Rs. 1200/- on account of the personal expenses of the deceased. The claimants' learned counsel's reliance on Trilok Chandra's case (supra) is apposite. In this judgment, the Apex Court has laid down the rule of determining the dependency on the basis of, units. As per this judgment, every major member is to be considered as two units! and every minor as one unit. Thus, the deceased and his wife make 2 + 2 = 4 units and each minor, one unit, that is three units in all, totalling seven units. Thus, the share per unit works to 7/1200*172. It can, thus, be assumed that Rs. 300/- was spent on deceased. Since he was a working member and Rs. 100/- out of the pocket expenses has to be estimated, deducting this amount, the balance comes to Rs. 800/-. Multiplying it by 12, annual dependency of the claimants comes to Rs. 9600/-.
17. So far as age of the deceased is concerned, the claimant Rajinder Kaur has not proved his age and is totally silent on this point. RW-3 Pritam Singh has stated that age of the deceased was 35 years, but he has not given any basis for saying so. In the post mortem report, age of the deceased is mentioned as 25 years. There is no reason not to hold that the age of the deceased was 25 years at the time of accident. The learned tribunal has wrongly held that age of the deceased was 24 years. I find that the age of the deceased at the time of accident was 25 years.
18. So far as appropriate multiplier is concerned, in Trilok Chandra's case (supra) the Apex Court has held that the multiplier can not exceed 18 purchase factor. They held that 'thus under this schedule the maximum multiplier can be upto 18 and not 16 as was held in General Manager, Kerala State Road Transport Private v. Susamma Thomas, (1994-2)107 P.L.R. 1 (S.C.) factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as Courts and Tribunals are using higher multiplier as in the present case where the tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies' case (1942 AC 601).'
19. In this case also the multiplier of 18 is appropriate multiplier. Thus, in my considered view, the claimants are entitled to get Rs. 1,72,800/- as compensation from the respondents jointly and severally.
20. Claimant No. 1 has also claimed compensation on account of loss of consortium. The tribunal has not awarded any amount under this Head. In my considered view, the claimant-Rajinder Kaur is entitled to claim Rs. 5000/- for loss of consortium.
20. The tribunal has awarded interest 12 per cent per annum on the awarded amount of compensation from the date of award in case the compensation is not paid within three months thereof. No reason is assigned by the learned tribunal why the interest is not awarded from the date of the claim petition, which is the normal rule. Hence, in my considered view, the claimants are entitled to get interest on the awarded amount of compensation from the date of presentation of the claim petition dated 16.4.1981 at the rate of 12 per cent per annum till the compensation amount is paid to them.
21. Resultantly, both the above mentioned appeals are dismissed; cross-objections are allowed with cost which is quantified at Rs. 1000/-. The impugned order is modified to this extent that the claimants are entitled to get Rs. 1,77,800/- from the appellants jointly and severally with interest at the rate of 12 per cent per annum from the date of claim petition, i.e. 16.4.1981 till this amount of compensation is paid to them. Out of this amount, the liability of the Insurance Company is limited to the extent of Rs. 1,50,000/- only.