Punjab-Haryana High Court
Mukta Kathuria And Others vs Shri Kesar And Others on 15 March, 2022
FAO-831-1993(O&M) and -1-
other connected case
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
212
FAO-831-1993(O&M)
Date of Order: 15.03.2022
MRS. MUKTA KATHURIA AND OTHERS ..Appellants
Versus
SHRI KESAR AND OTHERS ..Respondents
FAO-1127-1993(O&M)
NATIONAL INSURANCE COMPANY LTD. ..Appellant
Versus
MRS. MUKTA KATHURIA AND OTHERS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Gurcharan Dass, Advocate
for the appellants.
Mr. Deepak Suri, Advocate
for appellant (in FAO-1127-1993)
for respondent No.3 (in FAO-831-1993).
Mr. Bhuwan Luthra, Advocate
for respondent no.2.
Mr. A.S. Pannu, Advocate
for Mr. H.S. Sawney, Advocate
for respondent No.6 and 7.
ANIL KSHETARPAL, J(Oral)
The hearing of the case is being held through video
conferencing on account of restricted functioning of the Courts.
The two connected appeals arising from a common award
passed by the Motor Accident Claims Tribunal (MACT), Ludhiana, have
come up for disposal.
The learned counsel representing the parties have submitted that
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the file of the case has been reconstructed after the original was burnt in an
accidental fire. The first appeal has been filed by the claimants with a prayer
to enhance the amount of compensation whereas, the second appeal has been
filed by the Insurance Company.
This Bench has heard the learned counsel representing the
parties and with their able assistance perused the paperbook.
Sh. Suresh Kumar Kathuria, aged about 32 years lost his
precious life in an automobile accident which took place on 02.06.1988. He
left behind a widow, two minor daughters and aged parents. He was
employed with M/s Ashoka Dyeing and Finishing Mills, Ludhiana on a
monthly salary of Rs.2,000/-. The learned counsel representing the claimants
claim that the Tribunal has overlooked the amount of bonus and leave
encashment to which the deceased was entitled along with his regular salary.
He submits that the deceased was entitled to the bonus at the rate of 8.33%
which if calculated comes equivalent to one month's pay and he was also
entitled to leave encashment which again if calculated comes to one month's
pay. He further contends that the Tribunal has erred while deducting one half
of the income of the deceased towards his personal expenses. Further while
assailing the correctness of judgment, he contends that the Tribunal has
failed to award the amount under conventional heads and increase the
income on account of future prospects.
Per contra, the learned counsel representing the Insurance
Company contends that the application filed by the Insurance Company to
direct the driver and owner of the offending vehicle to produce the driving
licence, has been wrongly dismissed.
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other connected case
In the facts of the case, it is considered appropriate to finally
decide the appeal filed by the claimants, whereas, the appeal filed by the
Insurance Company is required to be remitted back to the Tribunal. As
regards the claimant's appeal, it may be noted that there is no dispute that the
deceased apart from the salary was entitled to bonus and leave encashment.
Thus, the income of the deceased is assessed at the rate of Rs.28,000/- per
year in place of Rs.24,000/-. The deceased has left behind a widow, two
minor daughters and aged parents. It has been stated that the father of the
deceased was blind. Hence, the Court has erred in deducting half of the
income towards personal expenses of the deceased. The same is reduced to
1/4th. Therefore, the dependency comes to Rs.21,000/- per annum. As per
the judgment passed by the Five Judge Bench in National Insurance
Company Ltd. Vs. Pranay Sethi and others, 2017 SCC Online SC 1270.
The income is increased by 40% while taking into consideration the increase
in the income in future.
Under the conventional heads, each claimants shall be entitled
to Rs.40,000/- for loss of spousal, filial and parental consortium, as per the
judgment passed by the Hon'ble Supreme Court in Magma General
Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram and others, 2018(4)
RCR (Civil) 333 which has been reiterated by another Division Bench in
New India Assurance Co. Ltd. vs. Somwati and others, Civil Appeal
No.3093 No.2020, decided on 07.09.2020, and by a three Judge Bench in
United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder
Kaur and others, (2020) SCC Online 410, in which it has been approved
that each parent is entitled to Rs.40,000/- as consortium.
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The claimants shall also be entitled to Rs.30,000/- for loss of
estate and funeral expenses.
Thus, the amount is re-calculated as under:-
Amount awarded by the
Heads Motor Accidents Claims Amount awarded by
Tribunal (MACT). the High Court
Annual Income Rs.24,000/- Rs.28,000/-
Future Prospects NIL 40% Rs.28,000
+ Rs.11,200/-
________
Rs.39,200/-
Dependency ½ Rs.24,000/- ¼ Rs.39,200/-
¬ Rs.12,000/- ¬ Rs. 9,800/-
________ ________
Rs.12,000/- Rs.29,400/-
Multiplier Rs.12,000 X 16 = Rs.29,400 X 16 =
Rs.1,92,000/- Rs.4,70,400/-
Funeral Expenses NIL Rs.15,000/-
Loss of estate NIL Rs.15,000/-
Parental, Spousal and NIL Rs.40,000 X 5 =
filial consortium Rs.2,00,000/-
Total amount awarded Rs.1,50,000/- Rs.7,00,400/-
(Award) (According to the
insurance policy, as held
by the Tribunal)
The appeal filed by the claimants is allowed.
The learned counsel representing the Insurance Company
contends that it was the responsibility of the driver of the offending vehicle
to produce the driving licence particularly when an application in this regard
was filed. He submits that the Tribunal has erred in dismissing the
application and thereafter, proceeding to pass final judgment without
granting opportunity to the Insurance Company to challenge the order.
The matter is no longer res integra in view of the judgment
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passed by the Supreme Court in "Pappu Vs. Vinod Kumar Lamba and
another, 2018(1) PLR 425".
In view thereof, the appeal filed by the Insurance Company is
allowed. The dispute with regard to the validity of the driving licence and
liability to pay is kept open. The Insurance Company shall at the first
instance satisfy the award and thereafter recover the amount from the driver
and owner of the offending vehicle if the Tribunal records the aforesaid
findings.
The enhanced amount shall be payable with interest at the rate
of 6%.
The parties through their counsel are directed to appear before
the Tribunal on 01.04.2022 .
With these observations, both the appeals are disposed of.
All the pending miscellaneous applications, if any, are also
disposed of.
March 15th, 2022 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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