Punjab-Haryana High Court
New India Assurance Co Ltd vs Amandeep Singh & Others on 8 July, 2024
Neutral Citation No:=2024:PHHC:094801
1
FAO No.2426
2426 of 2016 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.2426 of 2016 (O&M)
Date of Decision: 08.07.2024
NEW INDIA ASSURANCE CO. LTD. ......Appellant(s)
Vs
AMANDEEP SINGH & OTHERS ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. Paul S. Saini, Advocate
for the appellant.
Mr. Ishaan Cooner, Advocate
for respondent Nos.1 and 2.
****
HARKESH MANUJA, J.
CM No.8904-CII
CII of 2016
This is an application seeking condonation of delay of 105 days in
filing the appeal.
I have heard learned counsel for the parties.
For the reasons mentioned in the application, which is supported by an
affidavit, sufficient cause has been made out to condone the delay in filing the
appeal. Thus, the application is allowed. Delay of 105 days in filing the appeal is
condoned.
Main Appeal
[1]. The present appeal lays challenge to an award dated 20.08.2015
passed by the learned Motor Accident Claims Tribunal, Gurdaspur ((hereinafter
hereinafter to
be referred as "the Tribunal"), whereby compensation of Rs.51,90,590/
Rs.51,90,590/- has been
1 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
awarded to Respondent Nos.1
1 and 2/claimants along with interest @ 6% per
annum.
[2]. Respondent Nos.1 & 2/claimants
claimants being dependents upon the deceased
Kulwinder Singh, filed claim petition before the Tribunal praying for grant of
compensation to the tune of Rs. 90,00,000/-
90,00,000/ on account of his death in a motor
vehicular accident dated 25.09.2014,
25.09.2014 alleging rash and negligent driving of
respondent
ondent No.3.
[3]. Learned Tribunal after appraisal of evidence and record held that
accident occurred due to rash and negligent driving of the respondent No.3/ driver
and as the deceased was working as Head Constable with Punjab Police, after
assessing his income as Rs.5,93,145/-
Rs.5,93,145/ per annum awarded compensation in the
following manner:-
manner
S.No Heads of Claim Amount (in Rs)
1. Loss of dependency (Net Income Rs.51,40,590/-
after deduction of tax - 1/3rd
Deduction X 13 multiplier)
2. Funeral expenses; Last Rites Rs.50,000/-
expenses and Loss of Love and
Affection
Total Rs.51,90,590/-
[4]. Being aggrieved against the award dated 20.08.2015, the present
appeal has been preferred by the appellant/Insurance
nsurance Company for reduction of
2 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
compensation. Facts as specified in the claim petition and the issue regarding
negligence of the driver of the offending vehicle as recorded by the Tribunal are
not in dispute, therefore, for the sake of brevity, they are not being repeated here.
[5]. Learned counsel for the appellant/Insurance Company contended that
keeping in view that the deceased worked as Head Constable with Punjab Police
olice,
the Tribunal arbitrarily assessed his income as Rs.
Rs.41,650/- per month whereas a
perusal of his salary certificate (Ex.P6) showed that deceased received various
allowances amounting
amount to Rs.1,300/- (approx.) towards his personal use and as such
those ought not to be counted as a part of his gross income. He further argued that
learned Tribunal erred while making a deduction of 1/3rd instead of 50% as
admittedly claimant No.2/daughterr of deceased was married and
and, thus, she could
not be said to be dependent on the deceased.
[6]. Learned counsel representing R
Respondent Nos.1 & 2/claimants
submitted that in the facts and circumstances of the case, claimants were suitably
compensated while keeping in view the evidence available on records except for
conventional heads which were liable to be modified.
[7]. I have heard learned counsel of parties and gone through the paper
book of the case and records of the Tribunal as well. I do not find force in the
argument raised by the
the learning counsel of appellant
appellant/Insurance Company.
[8]. In the present case, deceased who was working as a Head Constable
and his income was assessed as Rs.41,650/-
Rs. per month
month, the contention raised by
learned counsel representing the Insurance Company that various allowances
received by the deceased were for his personal expenses and
and, thus, were liable to
be deducted holds no good in view of decision rendered by Hon'ble Supreme
3 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
Court in case of "Manasvi Jain vs Delhi Transport Cor.Ltd.& Ors"
Ors",, reported as
22. As the deceased was married and had two children at the time
2014 (13) SCC 22.
of accident, deduction of 1/3rd onn account of personal expenses is appropriate and
the contention raised by learned counsel representing the Insurance Company that
claimant No.2/daughter
o.2/daughter of the deceased being married at the time of accident was
not dependent on the deceased does not hold good. The Hon'ble Apex Court in the
case of "National Insurance Company Limited Vs Birender and Ors.
Ors.",
", 2020 (1)
694, held that all the legal representatives of deceased are liable to be
RCR (Civil) 694,
compensated irrespective of the fact they being married and not dependent on the
deceased. Relevant excerpt from the said judgment is reproduced hereunder: -
"14.
14. The legal representatives of the deceased could move
application for compensation by virtue of clause (c) of Section
166(1). The major married son who is also earning and not fully
dependant on the deceased, would be still covered by the
expression "legal representative" of the deceased. This Court in
Manjuri Bera (supra) had expounded that liability to pay
compensation under the Act doe
doess not cease because of absence of
dependency of the concerned legal representative. Notably, the
expression "legal representative" has not been defined in the Act.
In Manjuri Bera (supra),, the Court observed thus:
thus:-
"9. In terms of clause (c) of sub
sub-section
section (1) of Section
166 of the Act in case of death, all or any of the legal
representatives of the deceased become entitled to
compensation and any such legal representative can
file a claim petition. The proviso to sa
said sub-section
section
makes the position clear that where all the legal
representatives had not joined, then application can
be made on behalf of the legal representatives of the
deceased by impleading those legal representatives
as respondents. Therefore, the Hi
High
gh Court was
justified in its view that the appellant could maintain a
claim petition in terms of Section 166 of the Act.
4 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
10. .....The Tribunal has a duty to make an award,
determine the amount of compensation which is just
and proper and specify the person or persons to
whom such compensation would be paid. The latter
part relates to the entitlement of compensation by a
person
on who claims for the same.
11. According to Section 2(11) CPC, "legal
representative" means a person who in law
represents the estate of a deceased person, and
includes any person who intermeddles with the estate
of the deceased and where a party sues or is sued in
a representative character the person on whom the
estate devolves on the death of the party so suing or
sued. Almost in similar terms is the definition of legal
representative under the Arbitration and Conciliation
Act, 1996 i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of
Branches of BANCO National Ultramarino v
v. Nalini
Bai Naique, 1989 Supp (2) SCC 275
275, the definition
contained in Section 2(11) CPC is inclusive in
character and its scope is wide, it is not confined to
legal heirs only. Instead it stipulates that a person
who may or may not be legal heir competent to inherit
the property of the deceased can represent the estate
of the deceased person. It includes heirs as well as
persons who represent the estate even wi
without
thout title
either as executors or administrators in possession of
the estate of the deceased. All such persons would be
covered by the expression "legal representative". As
observed in Gujarat SRTC v.
RamanbhaiPrabhatbhai
RamanbhaiPrabhatbhai, (1987) 3 SCC 234, a legal
representative is one who suffers on account of death
of a person due to a motor vehicle accident and need
not necessarily be a wife, husband, parent and child."
In paragraph 15 of the said decision, while adverting to the
provisions of Section 140
0 of the Act, the Court observed that even if
there is no loss of dependency, the claimant, if he was a legal
5 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
representative, will be entitled to compensation. In the concurring
judgment of Justice S.H. Kapadia, as His Lordship then was, it is
observed thatt there is distinction between "right to apply for
compensation" and "entitlement to compensation". The
compensation constitutes part of the estate of the deceased. As a
result, the legal representative of the deceased would inherit the
estate. Indeed, in that case, the Court was dealing with the case of
a married daughter of the deceased and the efficacy of Section 140
of the Act. Nevertheless, the principle underlying the exposition in
this decision would clearly come to the aid of the respondent Nos. 1
and
nd 2 (claimants) even though they are major sons of the deceased
and also earning.
15. It is thus settled by now that the legal representatives of the
deceased have a right to apply for compensation. Having said that,
it must necessarily follow that even the major married and earning
sons of the deceased being legal representatives have a right to
apply for compensation and it would be the bounden duty of the
Tribunal to consider the application irrespective of the fact whether
the concerned legal represen
representative
tative was fully dependant on the
deceased and not to limit the claim towards conventional heads
only....."
[8.1]. Further, in view of National Insurance Company Ltd. Vs. Pranay
1009, the deceased being 44 years of age at
Sethi and others, 2017(4) RCR (Civil) 1009,
the time of accident and in a permanent job,
job the future prospects @ 30% were
rightly given and,
and thus, warrant no interference on that account.
[8.2]. Even though no argument was raised by the learned Counsel
representing respondents Nos.1 & 2 regarding
ding enhancement of compensation
except under conventional heads as awarded by the Tribunal
Tribunal, but yet in view of the
peculiar facts and circumstances of the present case, this Court in its humble
opinion believes that it must pass an appropriate order to de
deliver
liver complete justice
by awarding just and reasonable compensation while exercising po
powers
wers under
6 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
Order 41 Rule 33 CPC read with Section 168 of Motor Vehicle Act, 1988.
Reliance in this regard can be placed upon decision rendered by the Hon'ble
Supreme Court in the case of "Satya Prakash Dwivedi vs Munna alias
Chandrabhan Yadav and Others" reported as 2021(4) R.C.R.(Civil) 398
398, whereby
reby
it was held that the Appellate Court has powers to grant appropriate relief even if
no appeal was made to a part of decree. Relevant excerpt thereof is reproduced
hereunder: -
"13. Upon a plain reading of Order 41, Rule 33 of the CPC, it
reveals that the Appellate Court has the power to pass any decree or
order which ought to have been passed, and to pass such other decree
or order as the case may require. Notwithstanding that the appeal is
against a part of the decree, this power may be exercised by the court
in favour of all or any of the respondents although such respondent
may not have filed any appeal or objection. However, the said power
must be exercised with caution or circumspection, particularly, in the
absence there being any cross objection or appeal filed by the
respondents. Such a power has to be exercised in exceptional cases
when its non-exercise
non exercise will lead to difficulties in the adjustment of
rights of the parties.
14. The aforesaid Rule does not confer unrestricted rights to
interfere with decrees which are not assailed merely because the
appellate court does not agree with the opinion of the court appealed
from. It is the duty of the appellate court to decide the appeal in
accordance with law. The appellate court must apply its judicia
judiciall mind
to the evidence as a whole while deciding a case and a judgment on
merits should not be lightly interfered with or reversed purely on
technical grounds unless it has resulted in failure of justice."
7 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
[8.3]. Thus, with regard to submission
submission made on behalf of respondent No
os.1
& 2, in view of judgment of Hon'ble Apex Court in "Smt. Sarla Verma and others
another", reported as 2009 (3) RCR (Civil)
Vs. Delhi Transport Corporation and another"
77, Pranay Sethi's case (supra) and "United India Insurance Co. Ltd. v. Satinder
Kaur" reported as (2021) 11 SCC 780
Kaur @ Satwinder Kaur", 780,, compensation awarded
under conventional heads needs to be reassessed
reassessed. Claimants are entitled for
Rs.18,000/- as compensation under the head of funeral expenses and Rs.18,000/-
Rs.18,000/
towards loss of estate by applying 10% increase under the conventional heads.
Loss of consortium is to be awarded to the tune of Rs.
Rs.96,000/-(48,000 x 2)) as
appellants/claimants
/claimants being children of deceased are entitled for parental
consortium; but simultaneously, they are not entitled for compensation on account
of loss of love and affection. Further, multiplier of 14 is to be applied instead of 13,
considering the fact that deceased was 44 years of age at the time of motor
vehicular accident.
[8.4]. In view of what has been
been discussed hereinabove, the
appellants/claimants shall be entitled for the grant of compensation in the
following manner:-
manner
Sr.No. Nature Amount in
Rupees
1. Annual Income of deceased after tax Rs. 4,43,204/-
4,43,204/
deduction
2. Add 30%
% of Future prospects Rs. 1,49,940/-
1,49,940/
3 Totall Income(Rs.4,43,204/
Income(Rs.4,43,204/-+Rs.1,49,940/-) Rs. 5,93,145 /-
/
4. Deduction (1/3rd) Rs. 1,97,715/-
1,97,715/
5. Multiplier of 14
4 as per age of 44 years Rs.55,36,020/-
Rs.55,36,020/
(Rs.3,95,430 /- X 14)
8 of 9
Neutral Citation No:=2024:PHHC:094801
FAO No.2426
2426 of 2016 (O&M)
7. Funeral Expenses Rs.18,000/--
8. Loss of Consortium (Rs.48000x2
(Rs.48000x2) Rs. 96,000/-
96,000/
9. Loss of Estate Rs.18,000/--
Total Compensation Rs.56,68,020/-
Rs.56,68,020/
Amount Awarded by the Tribunal Rs.51,90,590/-
Rs.51,90,590/
Enhanced Amount Rs.4,77,430/-
Rs.4,77,430/
[9]. The grant of interest @ 6% 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", reported as (2009) (4) SCC 513 approved in a
subsequent judgment titled as "Puttamma and others Vs. K.L. Narayana Reddy
and another",, reported as 2014 (1) RCR (Civil) 443
443,, the interest is enhanced
@ 9% per annum on the amount of compensation awarded to the claimants from
the date of institution of claim petition till its re
realization.
alization. Needless to mention here
that the amount of compensation already paid to the claims shall be deducted from
the enhanced compensation.
[10]. In view of aforesaid modification, the present appeal stands disposed
of. Pending miscellaneous application(s)
application(s) if any, shall also stand disposed of.
(HARKESH MANUJA)
July 08, 2024 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
9 of 9
