Punjab-Haryana High Court
United India Insurance Comp. Ltd vs Kanta Devi And Ors on 25 March, 2022
FAO-6588-2010(O&M) and -1-
other connected case
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
102
1. FAO-6588-2010(O&M)
Date of Order: 25.03.2022
UNITED INDIA INSURANCE COMP. LTD ..Appellant
Versus
KANTA DEVI AND ORS ..Respondents
2. FAO-39-2011(O&M)
KANTA DEVI AND ORS ..Appellants
Versus
DARSHAN SINGH AND ORS ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. V. Ramswaroop, Advocate
for the appellant.
Mr. Amit Jain, Sr. Advocate
with Mr. Dhruv Mittal, Advocate
for respondent No.1 to 4.
ANIL KSHETARPAL, J(Oral)
These two cross-appeals have come up for disposal.
The FAO-6588-2010, has been filed by the Insurance Company,
whereas, FAO-39-2011, has been filed by the claimants.
The correctness of the findings of the trial with respect to the
manner in which the accident took place and the findings of the Tribunal
with regard to the rash and negligent driving of driver Darshan Singh are not
questioned. The accident took place on 12.08.2008, at about 08:00 p.m.,
when a road roller which was parked on the road without any indicator or
parking lights contributed in the happening of the accident. The Tribunal
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after appreciating the evidence assessed the amount of compensation to the
tune of Rs.27,70,000/-. The deceased late Sh. Rishi Pal died on 12.08.2008,
while leaving behind aged mother, widow and two minor children.
The learned counsel representing the Insurance Company while
drawing the attention of the Court to the Insurance Policy Ex.R-1 submits
that ONE VIBRATARY ROLLER (SOIL COMPATOR) MODER EC5256
MAKE ESCORT was insured but the liability of the Insurance Company
was limited to Rs.7,90,500/-. He submits that the Insurance Company cannot
be made liable to pay the amount over and above the same. In other words,
he claims that the liability of the Insurance Company is limited.
Per contra, the learned counsel representing the claimants has
drawn the attention of the Court to the endorsements to the insurance policy
at page 201 of the record which reads as under:-
"THIRD PARTY LIABILITY
In consideration of the payment of the additional
premium of Rs.1,358.00 it is hereby agreed and declared
that notwithstanding anything to the contrary stated in
this policy, the Company will indemnify the insured:
a) against legal liability for the accidental loss or
damage caused to the property of other persons.
b) against legal liability (liability under contract
excepted) for fatal or non-fatal injury to any
persons other than the insured or his own
employees or employee of the owner of the
works/site/premises/location or employees of the
other firms/connected with any other work
site/premises/location or members of the family of
the insured or any of the aforesaid."
He contends that the in view of the aforesaid endorsements, the
Insurance Company on receipt of the additional premium of Rs.1,358/-, had
agreed to indemnify the insured against legal liability for the accidental loss
or damage caused to the person or property. He submits that clause (b) of the
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endorsement specifically includes legal liability for fatal or non-fatal injury
to any person other than the insured. He submits that the Tribunal has
correctly interpreted the provision of the aforesaid policy.
In FAO-39-2011, the learned Senior counsel appearing for the
claimants submit that as per the Income Tax Return of the deceased for the
assessment year 2008-2009, which has been produced in additional
evidence, the yearly income was Rs.3,43,593/-. This return was filed on
30.08.2008. He submits that the Court erred in relying upon the Income Tax
Return for the assessment year 2007-2008, which was filed on 19.10.2007. It
may be noted here that an application for permission to lead additional
evidence was filed in this Court on 03.08.2011, and notice of the application
was issued to the Insurance Company on 20.11.2012, but no reply to the
application has been filed. It is evident that there is acknowledgment of
filing Income Tax Return for the assessment year 2008-2009, dated
30.07.2008. The gross total income of the deceased has been recorded at
Rs.3,43,593/-.
It has further been brought to the notice of the Court that the
Tribunal did not grant increase in the income on account of the future
prospects as well as appropriate amount for loss of consortium was not
granted by the Tribunal.
Per contra, the learned counsel representing the Insurance
Company submits that the additional evidence should not be allowed.
A copy of the acknowledgment is a document which has some
authenticity particularly when its receipt is acknowledged by the Income
Tax Department. The return has been filed before the date of death of the
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deceased. Hence, chances of checking of the income are low.
Hence, the application for permission to lead additional
evidence is allowed and the Income Tax Return is taken on record.
Now, this bench proceeds to analyse the argument of the
learned counsel representing the Insurance Company. From the careful
reading of the endorsements, it is evident that the Insurance Company on
payment of the additional premium had agreed to reimburse the insured
against legal liability over fatal or non-fatal injury to any person other than
the insured or his employees. The deceased was a third party because he was
never employed by the company. It is not even the case of the Insurance
Company that late Sh. Rishi Pal falls within the definition of insured or its
employee.
In view thereof, the Insurance Company has insured the
construction company on receipt of the additional premium, hence it would
not be appropriate to hold that the liability of the Insurance Company is
limited qua third party. Hence, there is no substance in the appeal filed by
the Insurance Company.
Now, the focus shifts to the amount of compensation granted to
the appellants/(claimants). From the Income Tax Return, it is evident that as
per the Income Tax Return for the assessment year 2008-2009, the deceased
had declared his annual income for the previous year to the tune of
Rs.3,43,593/-. He has left behind him four dependants. In other words, there
were five members in the family, in total. Hence, the deduction of 1/4th is
considered appropriate. Consequently, the yearly income comes to
Rs.2,57,695/-. The deceased was 33 years old.
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The income is required to be increased by 40% on account of
future prospects 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 Tribunal has correctly applied the multiplier of 16 to assess
the compensation.
Qua the loss of consortium, filial, spousal and parental, each
claimant is entitled to Rs.40,000/- in view of the judgment passed 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.
Apart from that, the claimants shall be entitled to Rs.30,000/-
towards loss of estate and last rites i.e funeral expenses.
Hence, the amount of compensation is re-calculated as under:-
Amount awarded by the
Heads Motor Accidents Claims Amount awarded by
Tribunal (MACT). the High Court
Annual income Rs.4,60,000/- Rs.3,43,593/-
40% Rs.3,43,593 +
Future prospects -NIL- Rs.1,37,437 =
Rs.4,81,030/-
1/4th Rs.4,60,000 - 1/4th Rs.4,81,030 -
Dependency Rs.1,50,000 = Rs.1,20,257 =
Rs.3,45,000/- Rs.3,60,773/-
Annual income Rs.3,45,000 X 16 = Rs.3,60,773 X 16 =
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X Rs.55,20,000/- Rs.57,72,368/-
Multiplier
Loss of estate -NIL- Rs.15,000/-
Funeral expenses Rs.10,000/- Rs.15,000/-
Parental/Spousal/Filial Rs.10,000/- Rs.40,000 X 4 =
consortium Rs.1,60,000/-
Total amount awarded Rs.27,70,000/- Rs.59,62,368/-
(Award) (Reduced by half due to
income by capital gains)
Consequently, the appeal filed by the Insurance Company is
dismissed and the appeal filed by the claimants is allowed.
The enhanced compensation shall be payable along with the
interest at the rate of 7.5% from the date of filing of the claim petition till its
realization.
With all these observations, the both the appeals are disposed
of.
All the pending miscellaneous applications, if any, are also
disposed of.
March 25th, 2022 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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