Punjab-Haryana High Court
Pankaj Kumar And Anr vs Oriental Insurance Co Ltd And Ors on 21 March, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.247 of 2018
Date of Decision : 21.03.2022
Pankaj Kumar and Another ....Appellants
VERSUS
Oriental Insruance Co. Ltd. and Others ....Respondents
FAO No.2879 of 2015
Smt. Phulpati and Another ....Appellants
VERSUS
Pankaj Kumar and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Gaurav Chopra, Sr. Advocate with
Mr. Vardaan Seth, Advocate
for the appellants in FAO-247-2018 and
for respondent nos.1 and 2 in FAO-2879-2015.
Mr. Ashwani Arora, Advocate
for the appellants in FAO-2879-2015 and
for respondent nos.2 and 3 in FAO-247-2018.
Mr. Satpal Dhamija, Advocate
for respondent no.3 in FAO-2879-2015 and
for respondent no.1 in FAO-247-2018.
ALKA SARIN, J.
Heard in physical mode.
CM-745-CII-2018 in FAO-247-2018
This is an application under Sections 5 and 14 of the Limitation
Act, 1963 for condonation of delay of 1047 days in filing the present appeal.
For the reasons stated in the application, the same is allowed.
The delay of 1047 days in filing the present appeal is condoned.
JITENDER KUMAR
2022.03.21 18:28
I attest to the accuracy and
authenticity of this document.
Chandigarh
MAIN CASES
This common order shall dispose of the above-captioned two
appeals. FAO No.2879 of 2015 (Phulpati & Anr. vs. Pankaj Kumar &
Ors.) has been preferred by the claimants while FAO No.247 of 2018
(Pankaj Kumar & Anr. vs. Oriental Insurance Co. Ltd. & Ors.) has been
preferred by the driver and owner of the offending vehicle against the award
dated 25.11.2014 passed by the Motor Accident Claims Tribunal, SAS
Nagar (Mohali).
In the later part of the judgment, the parties will be referred to
as claimants, driver and owner of the offending vehicle and the Insurance
Company for the sake of convenience.
The brief facts relevant to the present case are that on
14.07.2013 at about 07.30 p.m. Rajesh Kumar (deceased) was crossing the
highway leading from Chandigarh to Ambala. When he reached near the
divider, a car bearing registration no.HR-01-AE-3150 being driven in a rash
and negligent manner by its driver hit the deceased as a result of which he
received serious injuries and succumbed to the injuries on the way to
G.M.C.H., Sector 32, Chandigarh where the doctor declared him as brought
dead.
The claimants preferred a claim petition stating therein that the
deceased was working as a Web Designer with Anjali Arts, Plot No.156,
Phase-II, Industrial Area, Chandigarh and was drawing a salary of 18,000/-
per month and therefore, claimants prayed for compensation to the tune of
50,00,000/-.
All the respondents appeared before the Tribunal. However, the
driver and owner of the offending vehicle failed to file their written
JITENDER KUMAR
2022.03.21 18:28
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authenticity of this document.
Chandigarh
statements within a stipulated period and their defence was struck off vide
order dated 06.01.2014. The Insurance Company in its written statement
raised preliminary objections regarding the maintainability of the claim
petition and alleged that the driver of the offending vehicle was not holding
a valid and effective driving licence. On merits, the Insurance Company
denied the involvement of the offending vehicle and pleaded that excessive
compensation had been claimed by the claimants.
From the pleadings of the parties the following issues were
framed :
1. Whether respondent no.1 drove car bearing registration
no.HR-01-AE-3150 in rash and negligent manner and
struck against Rajesh Kumar deceased ?
2. Whether the claimants are entitled to compensation ? If
so, at what rate, against whom ? OPP
3. Whether the petition is not maintainable ? OPR
4. Whether respondent no.1 was not holding a valid and
effective driving licence ? OPR
5. Whether the car in question is being used against the
terms and conditions of the insurance policy ? OPR
6. Whether the claimants have got no locus standi to file the
present claim petition ? OPR
7. Relief.
On the basis of the pleadings of the parties and the evidence
produced, the following compensation was awarded by the Tribunal :
Sr. Heads Compensation Awarded
No.
1 Monthly Income of the deceased 6500/-
2 Annual income of the deceased
3 Addition of 50% on 78000/- on
account of future prospects
JITENDER KUMAR
2022.03.21 18:28
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Chandigarh
4 Total income of the deceased
5. Personal and living expenses (1/2)
6. Income after deduction of personal
and living expenses
7 Multiplier
8 Amount of compensation
9 Funeral expenses
Grand Total /-
On issue no.4, it was held that the driver of the offending
vehicle was not holding a valid and effective driving licence at the time of
accident. Hence, recovery rights were given to the Insurance Company.
FAO-247-2018
The present appeal has been filed by the driver and owner of the
offending vehicle against the award dated 25.11.2014 passed by the Tribunal
whereby recovery rights have been given to the Insurance Company. The
only reason why recovery rights were given to the Insurance Company was
that the driver of the offending vehicle was stated to be not holding a valid
driving licence. It is noticed in the award as under :
"17. As far as liability is concerned, from Ex.R2
certified copy of the certificate of registration of the
offending car bearing No.HR-01-AE-3150, it comes out
to the surface that respondent no.2 Renu Khanna is
recorded owner of the said offending car. From Ex.R3
certified copy of driving license of respondent no.1, it
emerges out to the surface that respondent no.1 Pankaj
Kumar is having driving license valid w.e.f. 21.07.2009
to 21.11.2012 only, whereas, the accident in the present
case occurred on 14.07.2013, therefore, respondent no.1
JITENDER KUMAR
2022.03.21 18:28
was not holding valid and effective driving license at the
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authenticity of this document.
Chandigarh
time of accident i.e. on 14.07.2013. Though, the
offending car bearing No.HR-01-AE-3150 was insured
with respondent no.3 insurance company vide Ex.R1,
attested copy of the motor insurance certificate cum
policy schedule, from 17.04.2013 to 16.04.2014 thereby
covering the period of accident. Therefore, liability of
all the respondents to pay the awarded compensation
amount is held to be joint and several, whereas, the first
liability is that respondent no.3 insurance company with
right to recover from respondent nos.1 and 2."
Learned counsel for the appellants herein would contend that
the driving licence held by the driver of the offending vehicle, which was
produced on record as Ex.R3, had an endorsement which clearly stated that
licence for LMV was valid w.e.f. 21.11.2012 to 21.07.2019 and hence at the
time of the accident the driver was holding a valid driving license. During
the pendency of the present appeal the Insurance Company had taken time to
verify whether the driving licence held by the driver was a valid driving
licence.
Today, Mr. Satpal Dhamija, Advocate, counsel for the
Insurance Company, has placed on record the verification report prepared by
Mr. Rakesh Gupta, Surveyors & Loss Assessors, Khajjar Raod, Sultanpur,
District Chamba (HP) wherein it has been clearly stated that the driving
licence issued by RLA Dalhousie was found to be genuine. Copy of the
report of the Registering and Licencing Authority, Dalhousie, District
Chamba (HP) has also been handed over in Court wherein also it has been
stated that the said licence was a genuine licence. Both the said documents
are taken on record as 'Mark C1 and C2'.
JITENDER KUMAR
2022.03.21 18:28
I attest to the accuracy and
authenticity of this document.
Chandigarh
In view of the above and especially in view of the fact that both
Mr. Rakesh Gupta, Surveyors & Loss Assessors and the Registering and
Licencing Authority, Dalhousie, District Chamba have given reports that the
driving licence held by the driver of the offending vehicle was a valid
licence, learned counsel for the Insurance Company has fairly conceded that
the appeal would have to be allowed.
In view of the above, the present appeal stands allowed and the
finding on issue no.4 stands set aside.
FAO-2879-2015
The present appeal has been preferred by the claimants
challenging the quantum of compensation awarded to them by the Tribunal.
Learned counsel for the claimants would contend that the
claimants have led sufficient evidence, oral as well as documentary, in order
to show that the deceased was drawing a salary of 10,000/- per month. A
copy of the Middle Standard Examination Certificate of the deceased and
copy of the Matriculation Certificate of the deceased as well as copy of the
Senior Secondary Examination Certificate of the deceased were exhibited as
Ex.P-4, P-5 and P-6 respectively. A copy of the certificate issued by Duke
Infosys to the deceased was exhibited as Ex.P-9. It is further the contention
that the salary certificate of the deceased was proved on the record as Ex.P-
15 and the copy of the salary vouchers were proved on the record as Ex.P-16
to Ex. P-20. Copy of the attendance register of the deceased was also proved
on record as Ex.P-21 to Ex.P-25. Learned counsel for the claimants has
further contended that the Tribunal disbelieved the said documents only on
the ground that no appointment letter had been issued in favour of the
deceased at the time of his joining the firm as also on the ground that PW-3
JITENDER KUMAR
2022.03.21 18:28
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Amit Kumar had stated that he did not know the nature of job of the
deceased. Learned counsel for the claimants would further contend that at
the time of exhibition of the documents by the claimants no objections were
raised by the respondents.
The next argument raised by the learned counsel for the
claimants is that no amount has been awarded towards consortium as per the
judgment of the Supreme Court in the case of Magma General Insurance
Company Limited vs. Nanu Ram alias Chuhru Ram & Ors. [2018 (18)
SCC 130]. He has further relied upon judgment by Hon'ble Supreme Court
in N. Jayasree & Ors. vs. Cholamandalam MS General Insurance
Company Ltd. [2021 (4) RCR (Civil) 642] to contend that the claimants
would be entitled to a 10% increase on the amounts under the conventional
heads as laid down in the case of National Insurance Company Ltd. vs.
Pranay Sethi & Ors. [(2017) 16 Supreme Court Cases 680].
Per contra, learned counsel appearing on behalf of the
Insurance Company has stated that the compensation awarded by the
Tribunal is sufficient and there is no scope for further enhancement. It has
further been contended that PW-2, Ashwani Kumar, who was Accountant in
the office of M/s Anjali Arts, could not tell whether the deceased was a
skilled or unskilled or semi-skilled worker and further that there was no
appointment letter which was issued to the deceased at the time of his
joining the firm and, hence, it could not be believed that the deceased was
earning Rs.10,000/- per month. Learned counsel has further contended that
the future prospects, keeping in view the age of the deceased, ought to have
been calculated @ 40% while the Tribunal has granted the future prospects
@ 50%.
JITENDER KUMAR
2022.03.21 18:28
I attest to the accuracy and
authenticity of this document.
Chandigarh
I have heard learned counsel for the parties.
In the present case the deceased, who was 25 years of age, had
been working with M/s Anjali Arts and in order to prove that the deceased
had been working as a Graphic Designer, salary certificate of the deceased
was produced as Ex.P-15. The said document was produced by PW-2 the
accountant from the office of M/s Anjali Arts. No objection was raised to the
exhibition of the said document. Further, the copy of the salary vouchers of
the deceased were produced as Ex.P-16 to Ex.P-20 and copy of the
attendance register of the deceased were produced as Ex.P-21 to Ex.P-25.
No evidence was produced by the respondents to the contrary or to show that
the said documents were fabricated. No reason has been given by the
Tribunal for not relying on the said documents. The documents Ex.P-15 to
Ex.P-25 were duly proved and there is no reason to doubt the authenticity of
the said documents. Hence, income of the deceased ought to have been
assessed as 10,000/- per month.
Further, the Tribunal has erred in granting an addition of 50%
towards future prospects. As per the law laid down in the case of Pranay
Sethi (supra), keeping in view the age of the deceased, an addition of 40%
towards future prospects ought to have been made. No amount has been
granted towards Filial consortium to the claimants who are the parents of the
deceased as per the law laid down in Magma General Insurance Company
Ltd. (supra). Further, as per the law laid down in Pranay Sethi's case
(supra), which is reiterated in N. Jayasree's case (supra), the claimants
would also be entitled to 10% increase under the conventional heads.
In view of the above, the following compensation is allowed to
the claimants :
JITENDER KUMAR
2022.03.21 18:28
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authenticity of this document.
Chandigarh
Sr. Heads Compensation Awarded
No.
1 Monthly Income of the deceased 10000/-
2 Annual income
3 Monthly income after deduction @ 120000-
50% towards personal expenses
4 Future Prospects @ 40% 60000+ 24000) =
84000/-
5 Multiplier '18' 84000x18 = 15,12,000/-
6 Loss of Estate 16500/-
7 Funeral Expenses 16500/-
8 Loss of Consortium
(i) Father and Mother ( 44,000x2) = 88000/-
Total Compensation 1633000/-
The amount in excess over what has already been awarded by
the Tribunal shall also attract interest @ 9% from the date of the award till
the realization of the entire amount. The amount shall be apportioned
between the claimants as directed by the Tribunal.
In view of the above discussion, both the above-captioned
appeals are allowed and the award passed by the Tribunal is modified
accordingly. Pending applications, if any, also stand disposed off.
( ALKA SARIN )
JUDGE
21st March, 2022
jk
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
JITENDER KUMAR
2022.03.21 18:28
I attest to the accuracy and
authenticity of this document.
Chandigarh
