Punjab-Haryana High Court

United India Insurance Company ... vs Shanti Devi And Ors on 22 September, 2023

Neutral Citation No:=2023:PHHC:124855

2023:PHHC:124855

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

1.
FAO-8445-2014 (O&M)
Reserved on : 18.7.2023.
Date of Decision:- 22.9.2023

United India Insurance Company Ltd.
... Appellant
Versus
Shanti Devi and Ors.
... Respondents
*****
2.
Cross Objections No.XOBJC-247-CII-2015 (O&M)

Shanti Devi and another

Versus

United India Insurance Company Limited and others

CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH

*****

Argued by :-
Mr. Varun Sharma, Advocate
for the appellant in FAO-84453-2014.

Mr. Brijeshwar Vashist, Advocate and
Mr. Tarunveer Vashist, Advocate
for appellants No.1 and 2 in XOBJC-247-CII-2015 and
for respondents No.1 and 2 in FAO-8445-2014.

Mr. Jugnash Goyal, Advocate for
Mr. Denesh Goyal, Advocate
for respondent No.4.

Mr. Kuldeep, Advocate for
Mr. Tribhwan Singla, Advocate
for respondent No.5.

*****

KARAMJIT SINGH, J.

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1. This order of mine shall dispose of above mentioned two cases i.e.

FAO-8445-2014 (filed by the insurance company for setting aside the

award) and Cross Objections having XOBJC-247-CII-2015 (filed by

the claimants for enhancement of compensation). For convenience,

facts are taken from FAO-8445-2014.

2. The brief facts of the case of claimants are that the claimants/cross-

objectors are parents of deceased Birbal @ Nikku. On 12.10.2012 at

about 7:00 P.M. Birbal @ Nikku was coming back from his work

place to his village Passiana on foot and when he reached near bus-

stop of village Wazidpur, a truck/tanker No.PB06-D-2388, which was

driven in rash and negligent manner by Jatinder Singh came there and

struck Birbal @ Nikku as a result of which, he sustained multiple

injuries and died at the spot. FIR No.118 dated 12.10.2012 was

registered against Jatinder Singh under Section 279-/304-A IPC in

Police Station Passiana with regard to aforesaid accident, which was

witnessed by Shamshad Ali son of Sita Khan resident of village

Mehmadpur. The offending truck was owned by Kanchan Singh and

Lachman Dass and was insured with The United India Insurance

Company. The deceased was 20 years of age and was carpenter by

profession and used to earn ` 16,000/- per month by doing work of

Carpenter and he was also earning another ` 8,000/- per month by

doing private job and his total monthly income was ` 24,000/-. That

both the claimants were dependent on the income of the deceased and

they claimed compensation worth ` 25,30,000/- along with interest.

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3. The claim petition was contested by the driver, owners and insurer of

the offending truck. Respondents No.3 and 4 filed joint written

statement wherein the factum of accident was denied and it was

pleaded that false FIR was registered by the police against Jatinder

Singh.

4. Insurance company filed separate written statement, wherein also the

factum of accident was denied and insurer also took preliminary

objections that at the time of accident, the driver of the offending

vehicle was not holding valid and effective licence and the truck in

question was being driven in violation of the provisions of Motor

Vehicle Act and the terms and conditions of the insurance policy.

5. Respondent No.5-Lachman Dass filed a separate written statement,

wherein he disclosed that he had already sold the truck in question to

respondent No.4-Kanchan Singh.

6. On the pleading of the parties, following issues were framed:-

1. Whether the deceased Birbal @ Nikku son of Narata Ram died

in a road side accident caused by rash and negligent driving by

respondent No.1? OPP.

2. Whether the claimants are entitled to receive the compensation,

if so from whom and to what amount? OPP

3. Whether the claim petition is not within limitation? OPD

4. Whether the driver of the Truck/Tanker bearing No.PB-06-D-

2388 was not holding a valid and effective driving license and route

permit at the time of alleged accident? OPR.

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5. Relief.

7. The counsel for the claimants examined PW-1 Narata Ram-father of

the deceased, who produced and proved post-mortem report Ex.P1,

FIR Ex.P2, Insurance Policy Ex.P3 and registration certificate of

offending vehicle Ex.P4. PW-2 Shamshad Ali deposed regarding the

accident in question being eye-witness. PW-3 Garib Dass ex-Sarpanch

of village Sawajpur Nawan was examined, in order to establish that

the deceased was earning ` 24,000/- per month and that the claimants

were totally dependent on the deceased.

8. On the other hand Lachman Dass appeared in the witness box as RW-

1 while the other respondents had not led any evidence.

9. After hearing the counsel for the parties, the Motor Accident Claims

Tribunal, Patiala (in short, "the Tribunal") allowed the claim petition

and granted compensation worth ` 7,32,000/- along with interest @

7.5% per annum from the date of filing of the petition till its

realization in favour of the claimants in equal shares and the driver

owner and insurer of the offending vehicle were jointly as well as

severally held liable to pay the awarded amount.

10. The insurance company being aggrieved by the Award has filed FAO-

8445-2014 while the claimants in order to seek enhancement of

awarded amount have filed cross-objections XOBJC-247-CII-2015.

11. I have heard the counsel for the parties.

12. The counsel appearing on behalf of the insurance company submits

that the deceased was bachelor and as such dependency of the parents

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on him is to be taken as ½ and not 1/3 as has been calculated by

Tribunal, in the light of law laid down by Hon'ble Apex Court in

Sarla Verma v. Delhi Transport Corporation, 2009(3) Law Herald

(SC) 2017. The counsel for insurance company has further contended

that while passing the impugned award, the Tribunal awarded `

1,00,000/- as loss of consortium to the mother of the deceased. That

as per the ratio laid down in National Insurance Company v.

Parnay Sethi, 2017(4) RCR(Civil) 1009, loss of consortium cannot

be more than ` 40,000/-. In this context the counsel for the insurance

company has also placed reliance upon the decision of Hon'ble Apex

Court in Shri Ram General Insurance Company Limited v. Bhagat

Singh Rawat and others; 2023 (2) TAC 713 (SC). The counsel for

the insurance company also tried to dispute the fact of accident in

question and submitted that the accident had not taken place due to

rash and negligent driving of truck No.PB06-D-2388, which was

insured with the United India Insurance Company at the time of the

alleged accident. Counsel for the insurance company further

contended that the deceased was not doing any work and as such, his

income assessed by the learned Tribunal as ` 4500/- per month is also

on higher side. So, prayer is made that the appeal filed by the

insurance company be allowed while cross objections filed by the

claimants deserve to be dismissed.

13. On the other hand, the counsel for the claimants has contended that

issue No.1 with regard to factum of accident in question is rightly

decided by the Tribunal in favour of the claimants and against the

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respondents. It has been further submitted that deceased was

unmarried and he was skilled workman being carpenter and his

minimum wages were ` 177.34 per day as per the rate fixed by the

State Government. It has been further submitted that multiplier of 18

should have been applied as the age of deceased at the time of the

death was 20 years. The counsel for the claimants has further

submitted that the claimants are entitled to get compensation under all

the conventional heads as per Parnay Sethi's case (supra) along with

40% future prospects and further enhancement of 10% after lapse of 3

years. It has been further submitted that the appeal filed by the

insurance company deserves to be dismissed, whereas the cross-

objections filed by the claimants be allowed and amount of

compensation awarded by the Tribunal should be enhanced, as per

law.

14. I have considered submissions made by counsel for the parties.

15. Eye witness namely PW2-Shamshad Ali while appearing in the

witness box deposed regarding factum of accident in question. From

the perusal of the testimony of the said eye witness coupled with FIR

Ex.P2 and post mortem report Ex.P1, it stands fully proved that the

accident in question was caused by respondent-Jatinder Singh while

driving truck/tanker No.PB06-D-2388 in a rash and negligent manner

on 12.10.2012 and as a result of the said accident, Birbal @ Nikku son

of the claimants had died. So, the findings of the learned Tribunal

with regard to issue No.1 are hereby affirmed.

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16. Admittedly, the deceased was 20 years of age and was unmarried and

the cross-objectors namely Shanti Devi and Narata Ram are parents of

the deceased. The accident in question took place on 12.10.2012. No

reliable evidence is led by the cross-objectors/claimants in order to

establish that the deceased was carpenter by profession or that his

monthly income was ` 24,000/-. The oral testimony of PW3-Garib

Dass, Ex-Sarpanch to the effect that he was running carpenter shop in

village and the deceased was also working with him as a carpenter

and was getting ` 16000/- per month as a salary remains

uncorroborated and thus, was rightly disbelieved by the learned

Tribunal while passing the impugned award. However, it is settled

position of law that in case of a deceased who was not earning or

doing any job at the time of the accident/death, his income is to be

determined on the basis of guess work. Taking into consideration the

fact that the accident in question took place in the year 2012 and at

that time, the deceased was aged about 20 years and prior to the

accident, the deceased was hale and hearty and thus, even if the

deceased was doing some manual labour, his income could be taken

as ` 5000/- per month at the time of the accident/death. Thus, the

monthly income of the deceased at the relevant time is assessed as `

5000/- per month in place of ` 4500/- per month as was assessed by

the learned Tribunal.

17. As per law laid down by Hon'ble Supreme Court in Sarla Verma v.

Delhi Transport Corporation, (2009) 6 SCC 121, the deceased being

bachelor, deduction should be 50% and not 1/3rd as has been assessed

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by the learned Tribunal, the reason being the family of the deceased

was not large. So, in the present case, the dependency of the cross

objectors/claimants on the deceased is to be taken as one half. Thus,

the monthly dependency of the claimants on the deceased in the

present case comes out to be Rs.2500/- and their annual dependency

comes out to be Rs.30,000/-.

18. As observed by the Hon'ble Supreme Court in National Insurance

Company Limited v. Pranay Sethi, (2017) 16 SCC 680, the

determination of income of the deceased while computing

compensation has also to include future prospects. In the instant case,

the deceased being 20 years of age and having no fixed source of

income or permanent job, an addition of 40% of the income should be

made towards future prospectu. So, as per law laid down in Pranay

Sethi's case (supra), an amount of Rs.12,000/- per annum is to be

added in the aforesaid total annual dependency of Rs.30,000/-. So,

total annual dependency of the claimants on the deceased comes out

to be Rs.42,000/-.

19. As per ratio laid down by Hon'ble Supreme Court in Sarla Verma's

case (supra), multiplier of 18 is to be applied in the present case in

place of multiplier of 17 as has been applied by the learned Tribunal

while passing the impugned award and in this manner, the amount

comes out o be ` 7,56,000/-.

20. As per judgment of Hon'ble Supreme Court in Pranay Sethi's case

(supra), the parents are also entitled to get reasonable compensation

under the conventional heads namely : -

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Loss of Consortium - ` 40,000/-

Funeral expenses - ` 15,000/-

21. In the instant case, the claimants are not entitled not get any

compensation under the head of loss of estate. However, the claimants

are entitled to get in total ` 52,000/- on account of loss of consortium

and ` 19,500/- as funeral expenses as per aforesaid settled law while

taking into consideration that the amounts are to be enhanced @ 10%

after every 3 years. Further, as per decision of Hon'ble Supreme Court

in Magma General Insurance Company Limited v. Nanu Ram @

Chuhru Ram and others 2018 (4) RCR (Civil) 333 and Shri Ram

General Insurance Company's case (supra), the claimants being

parents of the deceased aged about 20 years are also entitled to get

compensation worth ` 50,000/- on account of loss of love and

affection. Further, the claimants are entitled to litigation expenses

worth ` 15,000/- to be payable by the insurance company in view of

judgment passed by Hon'ble Supreme Court in case Sidram v. the

Divisional Manager, United India Insurance Company Limited

and another 2023 (1) RCR (Civil) 44.

22. In light of above discussion, FAO-8445-2014 deserves to be

dismissed while cross objections filed by the claimants are to be

allowed and the claimants are entitled to get ` 7,56,000/- + `

1,36,500/- = ` 8,92,500/- in place of ` 7,32,000/- as principal

compensation amount assessed by the learned Tribunal. The enhanced

amount of compensation i.e. ` 1,60,500/- over and above the amount

awarded by the learned Tribunal is to be paid by the insurance

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company to the claimants in equal shares at the rate of interest as

granted by the learned Tribunal and the said excess amount is to be

deposited within 2 months from the date of receipt of certified copy of

this judgment, with the Tribunal. The remaining conditions of

disbursal of the amount as are imposed by the learned Tribunal shall

remain un-altered. Needless to mention that the amount, if any,

already deposited by the insurance company shall be adjusted.

23. The appeal filed by the insurance company is hereby dismissed

whereas the cross-objections filed by the claimants are disposed of in

the above terms.


                                                       ( KARAMJIT SINGH )
                                                            JUDGE
September 22, 2023
Gaurav Sorot/Paritosh Kumar
                              Whether speaking/reasoned      Yes/No
                              Whether reportable             Yes/No




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