Abhilash Kumar Dhawan alias Harshu v. Pepsu Roadways Transport Corporation & Ors.

Mr.Mukand Gupta, Advocate, for the appellants. Mr.Harsh Aggarwal, Advocate, for respondent No.1. --- Vinod K.Sharma, J, (Oral) CM No.5927 of 2009 In view of the averments made in the application, civil misc. is allowed and the delay of 232 days in refiling the appeal is condoned. CM No.5928 of 2009 For the reasons stated in the application, which is not opposed, civil misc. is allowed and the delay of 195 days in filing the appeal is FAO No.1227 of 2009 2 condoned. FAO No.1227 of 2009 This is claimant/appellants appeal against the award dated

1.06.2007 passed by the learned Motor Accident Claims Tribunal, Bathinda (for short the Tribunal), under section 163-A of the Motor Vehicles Act (for short the Act) qua the quantum of compensation. The claimant/appellants filed a claim petition under section 163-A of the Act on the pleading that on 25.5.2006 Kamlesh Rani deceased boarded Bus No.PB-11E-9582 driven by respondent No.3, on which respondent No.4 was conductor for visiting Sanawar Public School Malour Road, Bathinda, where her minor children were studying. At about 10 AM when the deceased on reaching near the school, was in the process of getting down from the bus, then the bus driver started driving the bus before the deceased could alight from bus, as a result of which, she fell down on the road and sustained serious injuries at the back side of her head. Kamlesh Rani became unconscious after the fall due to the injuries on her head. Volunteers of Sahara Jan Sewa reached on the spot, and they took Kamlesh Rani in injured condition to Vigil Hospital, Bathinda. However, finding her condition to be serious, she was referred to PGI, Chandigarh but as the bed was not available at PGI, Chandigarh she was shifted to Silver Oaks Hospital, Mohali, where she remained admitted from 26.5.2006 to

28.5.2006, where she died on 28.5.2006. Vas Dev, husband of Kamlesh Rani was joined, as respondent No.6. He had married deceased Kamlesh Rani, after the death of his FAO No.1227 of 2009 3 previous wife Sheela Devi in 1994, however, he expressed his desire not to look after minor claimants, who are now staying with their maternal grand- parents. He had also relinquished his right of compensation, in favour of the minors. It was pleaded that besides doing household work Kamlesh Rani was also earning Rs.3300/- (Rupees three thousand and three hundred only) per month. The claim was contested by respondents No.1 and 2, by taking a plea that no accident with the bus in question had taken place and was falsely implicated. It was pleaded that Kamlesh Rani deceased received injuries, from some other source, but not due to use of motor vehicle i.e. the bus in question. It was for this reason that only DDR was recorded in which bus number was not mentioned. There was no stoppage of bus in question, at the spot of accident and as such the bus was not bound to stop there. It was also pleaded that the deceased herself, was negligent while alighting from the bus even as per contents of DDR. Respondent Nos. 1 and 2 denied liability to pay any compensation. In any case, interest at the rate of 6 per cent per annum was not permissible. Respondents No.3 and 4 took similar pleas like the ones taken by respondents No.1 and 2. Respondent No.6 admitted the claim. On the pleadings of the parties, learned Tribunal framed the following issues:- FAO No.1227 of 2009 4

1. Whether death of Kamlesh Rani took place in road accident on 25.5.06 as alleged, if so its effect OPP

5. Whether issue No.1 is proved, what amount of compensation the claimant is entitled and from whom? OPP

3. Relief. On appreciation of evidence learned Tribunal held that the death of Kamlesh Rani, took place in road accident on 25.5.2006 as alleged in the claim petition, while the motor vehicle was in use. On issue No.2 learned Tribunal came to the conclusion that the age of deceased at the time of accident was 40 years. It was also proved that she remained admitted at Silver Oaks Hospital, Mohali, from 26.5.2006 to

28.5.2006 in the intensive care unit. Bill showing expenses of Rs.21,108/- (Rupees twenty one thousand one hundred and eight only) was also proved. In addition, a sum of Rs.3892/- (Rupees three thousand eight hundred and ninety two only) was spent on medicines. In addition, a sum of Rs.1446/- (Rupees one thousand four hundred and forty six only) was also shown to have been spent on medicines. There was proof of additional expenses of Rs.971/- (Rupees nine hundred and seventy one only). So total expanses came to Rs.35,000/- (Rupees thirty thousand only). In addition she also incurred expenses on CT Scan, which was got conducted. Rs.5000/- (Rupees five thousand only) were allowed on account of expenses on transportation charges. The total compensation of Rs.2,80,000/- (Rupees two lacs and eighty thousand only) FAO No.1227 of 2009 5 was awarded. The learned Tribunal held, that there was no proof of income of the deceased though her income was assessed at Rs.2500/- (Rupees two thousand and five hundred only) per month and one third was taken to be her personal expenses. The dependency was assessed at 2/3rd, and multiplier of 12 was applied keeping in view the age of the deceased. Learned counsel for the appellant contended that assessment of income of Rs.2500/- (Rupees two thousand and five hundred only) is on the lesser side, as she was earning Rs.3300/- (Rupees three thousand and three hundred only) and was looking after the minor children, as the father was not looking after the minor children. There is force in this contention. Income of the deceased should have been assessed at Rs.3000/- (Rupees three thousand only) per month, even in the absence of any proof. Learned counsel for the appellants was also right in contending that multiplier of 12, was on the lower aside, and keeping in view the age of the deceased, multiplier should have been 15. The learned counsel for the respondents, supported the award, however, he could not controvert the contention of the learned counsel for the appellant, that assessment of income at Rs.2500/- (Rupees two thousand and five hundred only) was on the lower side, and that the multiplier was also not correctly applied. The contentions raised by the learned counsel for appellant are accepted and finding on issue No.2 is modified, the dependency of the FAO No.1227 of 2009 6 claimant is assessed at Rs.24000/- (Rupees twenty four thousand only) per annum, by applying multiplier of 15 total payable compensation, is assessed at Rs. 3,60,000/- (Rupees three lacs and sixty thousand only) (24000 x 15). In addition thereto claimants are also held entitled to medical expenses of Rs.35000/- (Rupees thirty five thousand only), Rs.2000/- towards funeral charges and Rs.2500/- (Rupees two thousand and five hundred) on account of loss of estate. The claimants are held entitled to a total compensation of Rs.3,99,550/- which is rounded off to Rs. 4,00,000/- (Rupees four lacs only). The appeal is partly allowed, the compensation awarded is enhanced to Rs.4,00,000/- (Rupees four lacs only). The appellant/claimants shall also be entitled to interest, at the rate of 6 per cent per annum on enhanced compensation, from the date of filing of the claim petition till No costs. payment.

8.03.2010 (Vinod K.Sharma) Judge