Full Judgment
Sanjay Karol, J.
1. The claimants have filed the present appeal assailing the impugned award dated 7.5.2003 passed by Motor Accidents Claims Tribunal-II, Una (H.P.) in M.A.C. Petition No. 100 of 1998, titled as Neelam v. Ram Bax, awarding compensation of Rs. 10,62,000 plus interest at the rate of 9 per cent per annum to the claimants.
2. Since the scope of the present appeal is narrow, facts necessary for deciding the present appeal are being narrated herein-below.
3. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation on account of death of Suresh Kumar, predecessor-in-interest of the claimants in an accident on 28.9.98. Vehicle No. HP 20-1264, owned by Ajay Jaswal and driven by Ram Bax hit the scooter No. HP 20-9530 being driven by the deceased. The accident occurred due to negligence of Ram Bax in which Suresh Kumar sustained injuries and ultimately succumbed to the same.
4. Based on the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether the accident took place on 28.9.1998 at 6 p.m. at Badehra due to rash and negligent driving of bus No. HP 20-1264 by the respondent No. 1 in which Suresh Kumar died as alleged?
OPP
(2) Whether the petitioners are entitled to compensation on account of death of Suresh Kumar in the accident? If so to what amount and from which of the respondents? OPP
(3) Whether the petition has been filed in contravention of the provisions of Motor Vehicles Act as alleged, if so, its effect? OPR3
(4) Whether the bus was being used against the terms and conditions of the insurance policy, if so, its effect?
OPR3
(5) Whether respondent No. 1 was not holding the valid and effective driving licence? If so, its effect? OPR3
(6) Whether the petition is bad for non-joinder of necessary parties as the owner and insurer of the scooter has not been impleaded as party? 0PR3
(7) Relief.
5. Appreciating the material on record (oral and documentary), the Tribunal held that Suresh Kumar had died in an accident which occurred due to rash and negligent driving of bus No. HP 20-1264 by Ram Bax. The vehicle being insured and the driver holding a valid and effective driving licence the liability to pay the compensation was fastened upon Oriental Insurance Co. Ltd.
6. On issue No. 2, the court found the claimants to be the legal heirs of the deceased and taking into account the loss of dependency to be Rs. 87,000 per annum by applying a multiplier of '12', total compensation for loss of income was determined to be Rs. 10,44,000. A sum of Rs. 15,000 as loss of consortium and Rs. 3,000 as funeral charges was also awarded.
7. The impugned award has been assailed only by the claimant. No appeal or cross-objections have been filed by the owner, driver or the insurer.
8. I have heard the learned Counsel for the parties and also perused the record.
9. As on the date of death, it is proved by the claimants' witnesses Bhajan Singh, PW 1; Rajinder Kumar, PW 2; Neelam, PW 5 that the deceased was working as an agent of Life Insurance Corporation and had earned the following commission for the last three preceding years prior to his death:
1998 Rs. 1,45,181.001997 Rs. 3,00,261.711996 Rs. 2,70,418.41
10. In my view, keeping in view the principles of law laid down by the Apex Court in Oriental Insurance Co. Ltd. v. Jashuben : 2008 ACJ 1097 (SC), the court below has rightly taken into account the income for the year 1998. For the purpose of determining the loss of dependency and income to the family, the income as on the date of death has to be taken into account. The accident took place in September 1998. Submission of Mr. Sharma, learned Counsel appearing for the claimants, that the income of all the three years preceding the year of death should be clubbed and mean of the same should be considered for the purpose of determining the loss of income is not acceptable in view of the well settled position of law.
11. In my view, the Tribunal has rightly taken the figure to be Rs. 1,44,581 and deducted the component of income tax of Rs. 14,357 on the same. The Tribunal has also rightly deducted 1/3rd of the balance amount for the purpose of determining the dependency and the loss of income to the family, which finally was worked out to be Rs. 87,000 per annum.
12. For the purpose of determining the multiplier, the Tribunal has taken the age of the deceased to be 35 years. The Tribunal has referred to two documents, i.e., matriculation certificate and post-mortem report, Exh. PH. As per matriculation certificate, the age of the deceased on the date of his death is about 31 years, but, however, the post-mortem report records the age to be 35 years. Relying upon the postmortem report, Exh. PH, the Tribunal held the age of the deceased to be 35 years.
13. In my view, the approach adopted by the Tribunal below is totally erroneous. The post-mortem report proved by Dr. V.K. Raizada, PW 4, claimant's witness was to prove the factum of the death of the deceased and not to prove the age of the deceased. The claimant-widow of the deceased PW 5 stepped into the witness-box and categorically deposed the age of the deceased to be 28/29 years, which is more proximate to the age as given in the matriculation certificate. The said document was marked as Mark 'X'. Her deposition reveals that there is no cross-examination on the point of age. For the aforesaid reason, in my view, the Tribunal has erred in deciding the age of the deceased to be 35 years, which in the present case is held to be 31 years.
14. The Claims Tribunal has applied multiplier of '12' while determining the compensation payable to the claimants. The age of the deceased as on the date of the accident is held to be 31 years. As on the date of the accident the age of the claimant No. 1-widow was about 26 years, claimant Nos. 2 and 2-A were minor son and daughter and claimant No. 3 is the father of the deceased. The deceased was the sole bread-earner of the family and the widow was left to fend for herself. Therefore, in my view, the multiplier of '14' would be fair and just.
15. No doubt, the compensation to be awarded is neither charity nor bounty, but however, the legislation being beneficial in nature, the court has to adopt a liberal approach while awarding compensation. The Supreme Court in Hardeo Kaur v. Rajasthan State Road Trans. Corporation : 1992 ACJ 300 (SC), has reiterated the following passage as held by the Apex Court in its earlier decision:
(8) This Court in Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC), held as under:
The determination of the quantum must be liberal, not niggardly since the law values life and limb in free country in generous scales.
16. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : 1995 ACJ 366 (SC), the Apex Court has laid down the following criteria for awarding the compensation:
(9) ...Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of the injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
17. Therefore, the claimants shall be entitled to compensation of Rs. 12,18,000 (Rs. 87,000 x 14).
18. Further, in my view the loss of consortium and funeral charges have also been awarded on the lower side and a sum of Rs. 15,000 plus Rs. 3,000 should be enhanced to Rs. 30,000. Ordered accordingly.
19. For the foregoing reasons, the award of the Tribunal is modified to the aforesaid extent. Needless to say that the claimants are entitled to aforesaid enhanced compensation in proportionate to their shares and interest as awarded by the Tribunal. The appeal is allowed accordingly.