Punjab-Haryana High Court
National Insurance Co Ltd vs Sundara And Others on 9 December, 2022
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
Reserved on: December 07, 2022
Pronounced on: December 09, 2022
National Insurance Co. Ltd. ...Appellant
Versus
Sundara and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Amit Jaiswal, Advocate for the appellant.
Mr. Dheeraj Narula, Advocate,
for respondents No.1 to 5 (cross-objectors).
****
HARKESH MANUJA, J.
This order of mine shall dispose of an appeal filed at the
instance of Insurance Company impugning the award dated 31.08.2018
passed by learned Motor Vehicle Accident Claims Tribunal, Sirsa
(hereinafter referred to as "the Tribunal"). Further, this order shall also
dispose of cross-objections filed at the instance of Claimants-Respondents
No. 1 to 5 seeking enhancement of compensation.
For convenience, the facts are taken from FAO No. 6974 of
2018, filed at the instance of appellant-Insurance Company.
In a claim petition filed by claimants on account of death of
Laddu on 16.11.2017, due to road accident, learned Tribunal after holding
respondent No. 6 to be rash and negligent while driving the offending
vehicle, awarded compensation in the following manner :-
Sr.No. Particulars Amount (Rs.)
1. Loss of Dependency Rs.15,64,920/-
2. Loss of consortium Rs.50,000/-
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
3. Medical expenses Rs.70,650/-
TOTAL COMPENSATION: Rs.16,85,570/-
In the present appeal, appellant- Insurance Company has
challenged the award dated 31.08.2018 only on the aspect of quantum of
compensation praying for reduction of the same. On the other hand,
claimants/ respondents no. 1 to 5 have filed cross objections praying for
enhancement of the compensation.
I have heard the arguments advanced by learned counsel for
both the parties and gone through the paper-book as well as the cross-
objections filed at the instance of claimants/ respondents No.1 to 5 and
records of the case herein, my discussion on merits under different heads
is as below.
Future prospects
Learned counsel for the Insurance Company contends that in
view of the law laid down by the Hon'ble Supreme Court in "National
Insurance Company Limited Vs. Pranay Sethi and Others" reported as
2017(4) R.C.R CIVIL 100, as the age of the deceased was considered by
the learned Tribunal as 40 years, on the basis of Post mortem report, future
prospects should have been awarded @ 25% instead of 40%.
On the other hand, learned counsel for the claimants contends
that as per the Aadhar card, age of the deceased was 34 years and
therefore, multiplier and future prospects should be taken accordingly.
There is no doubt that as per the Aadhar card, age of the
deceased was 34 years at the time of accident, but in the claim petition
filed at the instance of claimants- Respondents No. 1 to 5, his age has
been mentioned as 39 years. Therefore, in view of the contradictory stand
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
taken by the claimants, Aadhar card cannot be relied upon as a credible
source of age in this case. Further, in this case, date of birth of many
dependants including that of deceased has been shown as 1st January,
which is generally the case, when the exact date of birth of a person is not
known. In addition, if we take into consideration the date of birth of
deceased as 01.01.1983 and his son Ratan Singh as 22.07.1998 as per
aadhar card, the age of deceased comes out to be 15 years at the time of
birth of his son, which also seems to be highly improbable. Therefore,
learned Tribunal has rightly taken the age of the deceased as 40 years on
the basis of postmortem report. In that circumstance, it cannot be denied
that the learned Tribunal has wrongly considered the future prospects @
40% and it should have been awarded @ 25% as he was in the age
bracket of 40 to 50 years and working in private institution.
Income of the deceased:
Learned counsel for the claimants- Respondents No.1 to 5,
contends that it was prayed before the learned Tribunal that deceased was
earning Rs.10,500/- per month and even in the statement of PW3-Lalit
Kumar who appeared on behalf of Labour Department, it has come on
record that the deceased would have earned Rs. 350/- per day in case he
was provided employment on the recommendation of the department. He
further contends that even as per the letter dated 15.05.2018 issued by
Labour Commissioner, Haryana, minimum wages for the skilled labourer
was Rs.9,518/- per month.
In this regard, learned counsel for the appellate/ Insurance
Company contends that as there was nothing to substantiate that the
deceased was a skilled labourer, learned Tribunal rightly assessed income
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
as Rs. 8,280/- per month as a labourer. He further submits that the
statement of PW3-Lalit Kumar that income of the deceased was Rs.350/-
per day was only on the basis of the application form of the deceased
submitted with the Labour department and apart from that there was no
guarantee that a labourer enrolled with the department will get regular work
and income and there could be many days when there is no work and in
these circumstances, no interference is warranted on this account.
I find force in the argument of the learned counsel of the
appellant/ Insurance Company. The application form (brought on record as
Ex-P1) and the card issued by the Labour Department (brought on record
as Ex-P2) shows that deceased was illiterate and despite there being
option of "mistri" in the form as well, he himself chose the option of labourer
and enrolled himself as a labourer only. Though learned Tribunal did not
give any specific finding whether deceased was working as a labourer or a
skilled labourer, however, income assessed by it pertained to labourer, and
rightly so as nothing was brought on record to substatiate that he was
working as a skilled labourer. As stated by the PW-3 that it cannot be
ascertained that deceased would have got regular work, his income as Rs.
350 per day is not substantiated. Therefore the income assessed by the
learner terminal as Rs. 8280/- per month is rightly assessed for the purpose
of calculation of the compensation amount.
Funeral expenses and Conventional heads:
Learned counsel for the Insurance Company contends that as
claimants got expenses towards funeral expenses from the Labour
Department, no compensation shall be awarded on that account. Per
Contra, learned counsel for the claimants contends that the amount
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
granted by the government is not liable to be deducted from the
compensation amount as a tort-feaser or wrong doer cannot take this
objection. He further contends that in view of Pranay Sethi's case (supra)
compensation under conventional heads shall be appropriately awarded as
there were five dependants.
Regarding funeral expenses, I do not find any force in the
argument of learned counsel of the claimants as this part of the
compensation is on the basis of expenses incurred by the dependents of
the deceased and in the circumstance wherein this expense has already
been reimbursed by the Labour Department, they are not entitled to claim
this amount again from the Insurance Company. However, in view of
Pranay Sethi's case (supra), it cannot be denied that claimants are entitled
for Rs. 2,20,000/- on account of spousal, parental and filial consortium
apart from Rs.16,500/- on account of loss of estate.
No other argument has been raised.
Thus, in view of the discussions made hereinabove, the
claimants/ respondents No.1 to 5 herein are entitled for following
compensation, as detailed in the table given hereunder :-
Sr.No. Particulars Amount (Rs.)
1. Annual Income of deceased (Rs.8280 X Rs. 99,360/-
12)
2. Add 25% of Future prospects Rs.24,840/-
3. Total Income Rs.1,24,200/-
4. Deduction (1/4th) Rs.93,150/-
5. Multiplier of 15 as per age of 40 years Rs.13,97,250/-
(Rs.93,150x 15)
6. Loss of Consortium (Rs.44000 x 5) Rs.2,20,000/-
7. Loss of Estate Rs.16,500/-
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
FAO-6974-2018 (O&M) and
XOBJC-55-2019(O&M)
8. Medical expenses Rs.70,650/-
Total Compensation Rs.17,04,400/-
Amount Awarded by the Tribunal Rs.16,85,570/-
Enhanced Amount Rs.18,830/-
The grant of interest @ 7% per annum is not just in view of the
facts and circumstances of the present case; rather as per the observations
made by the Hon'ble Supreme Court in "Smt. Supe Dei and others Vs.
National Insurance Company Limited and other", (2009) (4) SCC 513
approved in a subsequent judgment titled as "Puttamma and others Vs.
K.L. Narayana Reddy and another", 2014 (1) RCR (Civil) 443, the
interest is enhanced to 9% per annum on the amount of compensation
awarded to the claimants from the date of institution of claim petition till its
realization. Needless to mention here that the amount of compensation
already paid to the claims shall be deducted from the enhanced
compensation.
The present appeal as well as the X-objections are disposed of
in the manner indicated hereinabove.
Pending application(s), if any, shall also stand disposed of.
(HARKESH MANUJA)
December 09, 2022 JUDGE
sanjay
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
SANJAY GUPTA
2022.12.13 15:28
I attest to the accuracy and
integrity of this document
