Ajay Tewari, J. (Oral)

CM No. 3290-CII of 2012

For the reasons recorded in the application, the delay of 202 days in refiling the present appeal is condoned.

CM stands disposed of.

CM No. 3292-CII of 2012

For the reasons recorded in the application, the delay of 63 days in filing the present appeal is condoned.

CM stands disposed of.

This appeal has been filed for enhancement of compensation. The brief facts are that on 23.09.2009 Balraj was going to Basai Enclave, Gurgaon on his Honda Activa bearing registration No. HR-26-AL-4499. His brother-in-la w (sisters husband) was also following him on his motor cycle. They both were on the left hand side of the road. At about 6.30 p.m. they were on the turning of Sideshwar School, a Maruti car bearing registration No. HR-26-K-7576 having been driven by respondent No.1 at a very high speed and in a rash and negligent manner came from opposite side and while coming on to the wrong side hit the Honda Activa of Balraj as a result of which he fell down and received injuries. He was taken to General Hospital, Gurgaon but he succumbed to his injuries in the hospital. The Tribunal held it to be a case of contributory negligence and apportioned the negligence in the ratio of 50:50. His income was taken as Rs. 2400/- to which a cut of 50% was applied and since the age of the deceased was 30 years and that of his parents was 50 and 52 years, multiplier of 11 was applied and compensation of Rs. 1,58,400/- was assessed. Besides that an amount of Rs. 10,000/- was also awarded on account of funeral and transportation expenses. Since the deceased was held negligent to the ratio of 50:50, the compensation was reduced to Rs. 84,200/-.

Learned counsel for the appellants has argued that the income of Rs. 2400/- taken by the deceased is erroneous. As per Minimum Wages Act applicable during that period when the accident had occurred, the income of the deceased must have been Rs. 4240/-. I find this to be indeed so and grant the monthly income at the rate of Rs. 4240/- per month. Learned counsel for the appellants has argued that the Tribunal has not awarded anything towards future prospects and nothing has been awarded on account of loss of love and affection and the amount awarded under the head of funeral expenses i.e. Rs. 10,000/- is very low. As regards future prospects learned counsel for the appellants has relied upon Rajesh and others v. Rajbir Singh and others reported as 2013(9) SCC 54. On the other hand learned counsel for the insurance company has relied upon Reshma Kumari and others v. Madan Mohan and another reported as 2013 AIR SC(Civil) 1731. This point has been discussed in detail by this Court in FAO No. 2990 of 2011, Manjit Kaur and others v. Ramesh Kumar and others decided on 08.01.2014. The deceased in the present case was 30 years of age. Therefore, adopting the same analogy as in FAO No. 2990 of 2011(supra), I grant an increase of 50% towards future prospects.

As far as compensation with regard to loss of love and affection is concerned, learned counsel for the appellants has relied upon Amrit Bhanu Shali and others v. National Insurance Company and others reported as 2012 ACJ 2002 [LQ/SC/2012/352] and Vimal Kanwar and others v. Kishore Dan and others reported as 2013(3) Recent Apex Judgments 446. He has argued that in Vimal Kanwar and others case (supra), the Honble Supreme Court awarded a sum of Rs.1 lac to the widow and a sum of Rs. 2 lacs to the minor girl on account of loss of love and affection, and another sum of Rs.1 lac towards loss of consortium to the widow. Consequently, I award an amount of Rs. 1 lac to the mother of the deceased on account of loss of love and affection and Rs. 25,000/- for funeral expenses and transportation. Further learned counsel for the appellants has argued that the multiplier of 11 applied by the Tribunal is inadequate. That multiplier has been taken as per the age of the claimants whereas, as per the age of the deceased multiplier of 16 should have been applied.

In Sarla Verma v. DTC (2001) 6 SCC 121, P.S.Somanathan and others v. District Insurance Officer and another (2011) 3 SCC 566 [LQ/SC/2011/263] and Amrit Bhanu Shali and others v. National Insurance Co. Ltd. and others 2012 ACJ 2002 [LQ/SC/2012/352] ; the Honble Supreme Court held that only the age of the deceased should be kept into consideration while fixing the multiplier.

However, in U.P. State Transport Corportation and others v. Trilok Chandra and others (1996) 4 SCC 362 [LQ/SC/1996/946] , Ramesh Singla and others v. Satbir Singh and another 2008 (1) SCC 667 [LQ/SC/2007/1453 ;] ">2008 (1) SCC 667 [LQ/SC/2007/1453 ;] [LQ/SC/2007/1453 ;] and Shakti Devi v. New India Insurance Company Ltd. and another 2010 (14) SCC 575 [LQ/SC/2010/1205] the Supreme Court has laid down a different provision by stating that the multiplier should be applied after taking into the consideration the age of the appellants. In my opinion, while adopting a multiplier, the age of the deceased as well as the age group of the claimants is a valid consideration. The expectancy of life of deceased is to be taken into consideration to arrives at a conclusion as to for how many years he could have supported the claimants. So far as the claimants are concerned their age-group is required to be considered to arrive at a conclusion as to for how many years they would have survived and could have enjoyed the dependency allowance of the deceased. Keeping in view the conflicting decisions of the Supreme Court and taking support from the decision of Division Bench of our High Court in United India Insurance Company Limited v Raj Rani 1998 (1) ACJ 175. Thus, in my considered view, the age of the deceased as well as the age group of the claimants is required to be taken into consideration while adopting a multiplier for determining the dependency to award compensation to the claimant. I, therefore, change the multiplier from 11 to 13.

The enhanced amount of compensation shall carry interest at the rate of 8% p.a. from the date of filing of the claim petition till realisation. The apportionment and the management of the money would also be as per the award of the Tribunal.

With the modification in the award, this appeal is allowed to the above extent.