AND HARYANA AT CHANDIGARH F.A.O.NO. 1014 OF 1991 Date of decision:3rd December v. Rajbir Singh & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. N.K.Sanghi, Advocate, Mr. Aditya Pal Singla, Advocate and Mr. Ashwani Bhardwaj, Advocate for the appellants. Mr. Pardeep Goyal, Advocate, for the Insurance Company.

2. 3. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral)

1. Both the appeals are for enhancement of compensation for the death arising on account of motor accident.

2. FAO No. 1014 of 1991 is for the death of a son of the F.A.O.NOs. 1014 and 1015 OF 1991 2 claimant who was IInd year M.B.B.S student. The Tribunal took the annual contribution that would have become possible if he completed his studies at Rs. 5,000/-, adopted a multiplier of 20 and provided for compensation of Rs. 1,20,000/-. In so working out the compensation, the Tribunal considered the decisions cited on behalf of the claimant in Shri Ram Finance Corporation Vs. Murlidhar and others 1988, A.C.J.P.734 that involved the case of death for a final year M.B.B.S student, where the Tribunal took the extent of dependence at Rs. 750/- per month, adopted a multiplier of 20 and provided for compensation of Rs. 1,80,000/-. In this case, since the deceased was a IInd year M.B.B.S student, it took the amount at Rs. 500/- per month. While determining the compensation for a student who is still not earning, a certain approximation of possible contribution to the family is imperative. The notional income of Rs. 15,000/- as provided under Schedule II is one of the modes of reckoning. There have been subsequent decisions coming through the Hon'ble Supreme Court, such as in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 that provided for a deduction of 50% for and for death of bachelors and for the choice of the multiplier itself the decision in Sarla Verma's case(supra) has explained and considered in Shakti Devi vs. New India Insurance Co. Ltd. and another JT(2010) 12 SC 106 that the multiplier shall have a bearing to the age of the claimant and not to the age of the deceased. The claimant was 48 years of age and in terms of the appropriate multiplier it would have F.A.O.NOs. 1014 and 1015 OF 1991 3 been 13. If an average income that could have been projected at the time when the case was decided in the year 1991 a provision for Rs. 3,000/- for a M.B.B.S. Student would have been appropriate and if 50% deduction were to be taken it would mean a contribution to the family at Rs. 1500/- per month and the annual contribution would have been Rs. 18,000/-. If multiplier of 13 were to be taken, the compensation payable would have been Rs. 2,34,000/-. To add conventional heads of claim for loss of her son and for loss to estate and to funeral expenses I would add another Rs. 16,000/- to round of the claim at Rs. 2,50,000/-. The amount in excess over what has already been determined by the Tribunal shall attract interest at 6% from the date of the petition till the date of payment.

3. As regards the claim in FAO No. 1015 of 1991, the deceased was the husband of the claimant and also the father of the deceased in the case, which was the subject of the claim in FAO No. 1014 of 1991. The deceased was aged about 52 years and was said to be a partner in M/s Jai Deep Industry at Narnaul which was engaged in the manufacturing of rubber products. He had also business interest in J.Tyres and Rubber Industries, Varanasi and a Director of Narula Brother Pvt. Ltd., Narnaul. He was an owner of Hotel Narula and also a Director of Rainbow Public School. He had two assessments one as a member of HUF and another as owner of Narula hotel. As regards the assessment as a member of HUF the income that was shown was Rs. 19,443/- for the year 1989-1990 and for the same period his income F.A.O.NOs. 1014 and 1015 OF 1991 4 from the hotel business was to be Rs. 47,804/-. The Tribunal took the income at Rs. 3,000/- per month, deducted Rs. 600/- per month and took the annual dependency at Rs. 28,800/- @ 2,400/- per month. The Tribunal took a multiplier of 16 and assessed the loss of dependence at Rs. 4,60,800/-. The Tribunal was referring to a decision cited on behalf of the claimant in 1999 ACJ 370 where this Court had held that while assessing the income of the individual at Rs. 3,000/- determined compensation of Rs. 5,76,000/-.

4. The mode of assessment of income for a business person can not be merely on the basis of the entire income which a person secured through business. The issue was explained by the Hon'ble Supreme Court in Rani Gupta vs. United India Insurance (2009) 13 SCC 498 where the Court held that loss of dependency must be taken as the contribution to run the business and not the value of the capital assets which remain with the family and which is capable of producing income. In this case, the business of Jai Deep Industry or J.Tyre Rubber Industry as well as Narula Hotel do still exist and the income generated from these sources can not said to be wholly lost. There is no particular proof as what was the income from the different businesses.

5. Learned counsel contends that income must have been taken at least at Rs. 10,000/- and the assessment at Rs. 5,000/- was not justified. It must be remembered that we are considering the case 20 years after the disposal of the case and our own perceptions of what F.A.O.NOs. 1014 and 1015 OF 1991 5 money can fetch have differently undergone a massive change. In an appeal, we primarily concerned about whether the Tribunal has applied the proper parameters and has assessed the compensation in the light of law which is prevailing at that time. It is not to state that the law coming subsequently will be discarded but if the assessment of compensation has been reasonable and just, there can not be an intervention in the appeal merely because another view is possible. If the assessment to income as HUF was shown Rs. 20,000/- per year I will retain the same as an income lost from the business in Jai Deep Industry at Narnaul. I am unable to find any help from P-5. His income was Rs. 46,000/- I am prepared to take 50% of that as coming through his managerial skills, in the same way if he was earning Rs. 20,000/- as a member of HUF for his association with his business with Jai Deep Industries and J.Tyres and Rubber Industry, I would take the entire income at Rs. 20,000/- therefore, take 50% from his income as Rs. 25,000/- and Rs. 20,000/- as the income from the two businesses. I can not factor any income from the school in his capacity as a director. Since the running of educational institution could be only through a society and not as an individual for profit. Against the income of Rs. 3,000/- which is taken by the Tribunal I would take at Rs. 5,000/- in the manner provided above and take the extent of dependence to the family after taking the personal expenses to the extent of 1/3rd at Rs. 33,333/-. I would provide for a multiplier of 11 as suitable to the age and the amount would be even less than what is F.A.O.NOs. 1014 and 1015 OF 1991 6 assessed by the Tribunal. I am afraid I can not make any enhancement for claim for compensation. FAO No. 1015 of 1991 is dismissed. 3rd December, 2010 Shivani Kaushik [K.KANNAN] JUDGE