Punjab-Haryana High Court
United India Insurance Co Ltd vs Rani And Ors on 31 January, 2025
Author: Alka Sarin
Bench: Alka Sarin
224
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-8247-2017 (O&M)
XOBJC-68-CII-2018 (O&M)
Date of Decision : 31.01.2025
United India Insurance Co. Ltd. ... Appellant(s)
Versus
Rani & Ors ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Harsh Aggarwal, Advocate for the appellant.
Mr. Sandeep Kotla, Advocate
for respondent Nos.1 to 6/cross-objectors.
Ms. Suman Sagar, Advocate for respondent Nos.7 and 8.
ALKA SARIN, J. (Oral)
CM-6622-CII-2018 in XOBJC-68-CII-2018
1. This is an application for condonation of delay of 10 days in
filing the cross-objections.
2. For the reasons stated in the application, delay of 10 days in
filing the cross-objections is condoned. CM stands disposed off.
FAO-8247-2017 & XOBJC-68-CII-2018
3. The present appeal (FAO-8247-2017) has been filed by the
appellant-Insurance Company and the cross-objections (XOBJC-68-CII-
2018) have been filed by the claimants-respondent Nos.1 to 6 aggrieved by
the award dated 05.09.2017 passed by the Motor Accident Claims Tribunal,
Fatehabad (hereinafter referred to as 'Tribunal'). The parties are being
referred to as Insurance Company, claimants and owner and driver for the
sake of clarity.
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -2-
4. Brief facts relevant to the present lis are that the accident in the
present case took place on 10.11.2015 when Kala Singh (since deceased)
alongwith Buta Singh was riding motorcycle Hero Honda bearing
registration No.HR-24-7527 and was going towards his fields at Kukranwali
where they had taken a piece of land on contract for cultivation. Kala Singh
was riding the motorcycle at a moderate speed and was wearing a helmet
and following all the traffic rules. At about 07.30 am, when they crossed the
waterworks of the village and were going towards Dariyapur, a Cruiser Jeep
bearing registration No.HR-56A-9425 being driven by the driver at a high
speed, rashly and negligently, came from the opposite side and struck
against the motorcycle. The accident resulted in the death of Kala Singh and
injury to Buta Singh and, hence, two claim petitions were filed - one by the
legal representatives of Kala Singh and one by Buta Singh for the injury
received. Both the claim petitions were disposed off vide the impugned
award dated 05.09.2017. The present appeal (FAO-8247-2017) arises out of
the claim petition filed by the legal representatives of Kala Singh. The
Tribunal vide the impugned award had awarded the following compensation:
Sr. No. Heads Compensation Awarded
1 Monthly income ₹7,800/-
2 Future prospects 50% [₹7,800 + 3,900] = ₹11,700/-
3 Annual income [₹11,700 x 12] = ₹1,40,000/-
4 Deduction 1/4th [₹1,40,000 - 35,100] = ₹1,05,300/-
5 Multiplier of 16 [₹1,05,300 x 16] = ₹16,84,800/-
6 Medical treatment ₹84,000/-
7 Funeral expenses ₹25,000/-
8 Loss of consortium ₹1,00,000/-
9 Love and affection ₹2,00,000/-
Total Compensation ₹20,93,800/-
Interest 7.5% per annum
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -3-
5. Learned counsel for the Insurance Company has referred to
Ex.R8, which is the Medico Legal Report of Kala Singh, wherein it has been
noted by the doctor that there was an alcoholic smell present in the breath
and he was grossly intoxicated. It is further the contention of the learned
counsel that since both Buta Singh and Kala Singh were intoxicated, it
would be a case of contributory negligence. The learned counsel for the
Insurance Company has not disputed the multiplier of 16 and deduction of
1/4th. However, he states that the income of the deceased as assessed by the
Tribunal is on the higher side as the minimum wage at the time of accident
was ₹5,886/- per month. It is further the contention of the learned counsel
for the Insurance Company that an addition of 40% ought to have been made
qua future prospects instead of 50% and that the amounts awarded under the
under the conventional heads and under the head 'loss of consortium' are not
as per the law laid down by the Hon'ble Supreme Court in the cases of
National Insurance Company Ltd. vs. Pranay Sethi & Ors. [(2017) 16
SCC 680], Magma General Insurance Company Limited vs. Nanu Ram
alias Chuhru Ram & Ors. [(2018) 18 SCC 130] and N. Jayasree & Ors.
vs. Cholamandalam M.S General Insurance Company Ltd. [2021(4)
RCR (Civil) 642].
6. Per contra the learned counsel for the claimants/cross-objectors
would contend that it has nowhere come in evidence as to the level of
alcohol present in the blood of Buta Singh or Kala Singh. The learned
counsel has referred to Section 185 of the Motor Vehicles Act, 1988 which
states that if a person driving or attempting to drive a motor vehicle has in
his blood alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -4-
a breath analyzer or in any other laboratory test, he would be held to be
under the influence of liquor and not otherwise. In the absence of any
evidence regarding the alcohol content in the blood, no conclusion can be
drawn as to whether Kala Singh and Buta Singh were intoxicated or not.
The learned counsel for the claimants/cross-objectors would further contend
that the age of the deceased has wrongly been applied by the Tribunal as 32
years as he was 29 years of age at the time of the accident and his date of
birth was 03.05.1986 as per the statement made by the wife of the deceased
while appearing in the witness box as PW4 (Smt. Rani). The learned counsel
would further contend that the income has rightly been assessed by the
Tribunal.
7. I have heard the learned counsel for the parties.
8. In the present case, the argument raised by the learned counsel
for the Insurance Company that it was a case of contributory negligence
deserves to be rejected. Section 185 of the Motor Vehicles Act, 1988 reads
as under :
185. Driving by a drunken person or by a person under
the influence of drugs - Whoever, while driving, or
attempting to drive, a motor vehicle, -
(a) has, in his blood, alcohol exceeding 30 mg. per 100
ml. of blood detected in a test by a breath analyser, or in
any other test including a laboratory test, or
(b) is under the influence of a drug to such an extent as to
be incapable of exercising proper control over the
vehicle,
shall be punishable for the first offence with
imprisonment for a term which may extend to six months,
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -5-
or with fine of ten thousand rupees, or with both; and for
a second or subsequent offence, with imprisonment for
term which may extend to two years, or with fine of
fifteen thousand rupees, or with both.
There is an observation made under the head 'General condition of Patient'
by the treating doctor (Ex.R8) wherein it had been stated that the patient was
semi-conscious and there was alcoholic smell present in his breath and he
was grossly intoxicated. However, there is no evidence on the record
regarding any laboratory test or a breath analyzer having been used to
measure the alcohol content in the breath of the deceased. In the absence of
any evidence, it cannot be held that the deceased was intoxicated at the time
of the accident. Hence, the said argument of the learned counsel for the
Insurance Company stands rejected.
9. The argument of the learned counsel for the Insurance
Company that the income of the deceased has wrongly been assessed as
₹7,800/- per month deserves to be accepted. Minimum wage at the time of
the accident i.e. 10.11.2015 was ₹5,886/- per month. However, the same was
increased on 01.01.2016 to ₹7,976/- per month. Hon'ble the Supreme Court
in the case of Chandra @ Chanda @ Chandraram vs. Mukesh Kumar
Yadav [2021 (4) RCR (Civil) 492] has held as under :
10. It is the specific case of the claimants that the
deceased was possessing heavy vehicle driving licence
and was earning Rs.15000/- per month. Possessing such
licence and driving of heavy vehicle on the date of
accident is proved from the evidence on record. Though
the wife of the deceased has categorically deposed as
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -6-
AW-1 that her husband Shivpal was earning Rs.15000/-
per month, same was not considered only on the ground
that salary certificate was not filed. The Tribunal has
fixed the monthly income of the deceased by adopting
minimum wage notified for the skilled labour in the year
2016. In absence of salary certificate the minimum wage
notification can be a yardstick but at the same time
cannot be an absolute one to fix the income of the
deceased. In absence of documentary evidence on record
some amount of guesswork is required to be done. But at
the same time the guesswork for assessing the income of
the deceased should not be totally detached from reality.
Merely because claimants were unable to produce
documentary evidence to show the monthly income of
Shivpal, same does not justify adoption of lowest tier of
minimum wage while computing the income. There is no
reason to discard the oral evidence of the wife of the
deceased who has deposed that late Shivpal was earning
around Rs.15000/- per month. In the case of Minu Rout
& Anr. v. Satya Pradyumna Mohapatra & Ors. (2013)
10 SCC 695 this Court while dealing with the claim
relating to an accident which occurred on 08.11.2004
has taken the salary of the driver of light motor vehicle at
Rs.6000/- per month. In this case the accident was on
27.02.2016 and it is clearly proved that the deceased was
in possession of heavy vehicle driving licence and was
driving such vehicle on the day of accident. Keeping in
mind the enormous growth of vehicle population and
demand for good drivers and by considering oral
evidence on record we may take the income of the
deceased at Rs.8000/- per month for the purpose of loss
of dependency. Deceased was aged about 32 years on the
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -7-
date of the accident and as he was on fixed salary, 40%
enhancement is to be made towards loss of future
prospects. At the same time deduction of 1/3 rd is to be
made from the income of the deceased towards his
personal expenses. Accordingly the income of the
deceased can be arrived at Rs.7467/- per month. By
applying the multiplier of '16' the claimants are entitled
for compensation of Rs.14,33,664/. As an amount of
Rs.10,99,700/ is already paid towards the loss of
dependency the appellant-parents are entitled for
differential compensation of Rs.3,33,964/. Further in
view of the judgment of this Court in the case of Magma
General Insurance Company Limited v. Nanu Ram @
Chuhru Ram & Ors. (2018) SCC Online SC 1546 =
(2018) 18 SCC 130 the appellants are also entitled for
parental consortium of Rs.40,000/- each. The finding of
the Tribunal that parents cannot be treated as
dependents runs contrary to the judgment of this Court in
the case of Sarla Verma (Smt). & Ors. v. Delhi Transport
Corporation & Anr.(2009) 6 SCC 121. The judgment in
the case of Kirti & Anr. v. Oriental Insurance Company
Limited (2021) 2 SCC 166 relied on by the counsel for
the respondent would not render any assistance in
support of his case having regard to facts of the case and
the evidence on record."
Keeping in view the above-noted judgment and the fact that the minimum
wage was increased on 01.01.2016 to ₹7,976/- per month, this Court deems
it appropriate to assess the income of the deceased as ₹7,000/- per month.
10. The argument of the learned counsel for the claimants/cross-
objectors that the age of the deceased was 29 years at the time of the
accident deserves to be rejected in view of the fact that no evidence was led
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -8-
qua the age of the deceased though Smt. Rani (PW4) stated that date of birth
of the deceased was 03.05.1986, however, in her cross-examination, she
stated that she has no age proof of the deceased. Accordingly, multiplier of
'16' and deduction of 1/4th as applied by the Tribunal are maintained.
11. The arguments of the learned counsel for the Insurance
Company that an addition of 40% ought to have been made towards loss of
future prospects instead of 50% and that the amounts awarded under the
conventional heads and under the head 'loss of consortium' are not as per
the law laid down by the Hon'ble Supreme Court, are also accepted keeping
in view the law laid down by the Supreme Court in the case of Pranay Sethi
(supra), Magma General Insurance Company Limited (supra) and N.
Jayasree (supra). Accordingly, as per the law laid down by the Hon'ble
Supreme Court in the case of Pranay Sethi (supra), 40% addition is made
towards future prospects and the claimants/cross-objectors would be entitled
to ₹18,000/- (₹15,000+20% increase) towards loss of estate and ₹18,000/-
(₹15,000+20% increase) towards funeral expenses and the claimants/cross-
objectors (wife, three children and parents of the deceased) would also be
entitled to ₹48,000/- each (₹40,000+20% increase) towards loss of
consortium. Accordingly, the reworked compensation is as under :
Sr.
Heads Compensation Awarded
No.
1 Monthly Income ₹7,000/-
2 Annual Income ₹84,000/- [₹7,000 x 12]
3 Deduction 1/4th ₹63,000/- [₹84,000 - 21,000]
4 Future Prospects - 40% ₹88,200/- [₹63,000 + 25,200]
5 Multiplier - 16 ₹14,11,200/- [₹88200 x 16]
6 Loss of estate ₹18,000/-
authenticity of this order/judgment.
FAO-8247-2017 (O&M) -9-
7 Funeral expenses ₹18,000/-
8 Loss of consortium
(i) Parental [₹48,000/- x 3] ₹1,44,000/-
(ii) Filial [₹48,000/- x 2] ₹96,000/-
(iii) Spousal's ₹48,000/-
(Total ₹2,88,000/-)
Total Compensation ₹17,35,200/-
12. In view of the above discussion, the present appeal (FAO-8247-
2017) filed by the Insurance Company is allowed and the cross-objections
(XOBJC-68-CII-2018) filed by the claimants-respondent Nos.1 to 6 are
dismissed. The impugned award passed by the Tribunal stands modified
accordingly in the above terms. Pending applications, if any, also stand
disposed off.
31.01.2025 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
authenticity of this order/judgment.
