FAO No.1749 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.1749 of 1992 DATE OF DECISION: February 21, 2011 NATIONAL INSURANCE CO. LTD. ...APPELLANT VERSUS GHISA RAM AND OTHERS ...RESPONDENTS PRESENT: MR. R.C. GUPTA, ADVCOATE FOR THE APPELLANT. MR. KUNAL GARG, AAG, HARYANA FOR RESPONDENTS NO.2 AND3. NONE FOR RESPONDENTS NO.1, 4, AND 5. 2. FAO No.441 of 1993 NATIONAL INSURANCE CO. LTD. ...APPELLANT VERSUS SAVITRI GAKHAR AND OTHERS ...RESPONDENTS PRESENT: MR. R.C. GUPTA, ADVCOATE FOR THE APPELLANT. MR. NEERAJ KHANNA, ADVOCATE FOR RESPONDENTS NO.1 TO 4. MR. KUNAL GARG, AAG, HARYANA FOR RESPONDENTS NO.5 AND 6. NONE FOR RESPONDENTS NO.7 AND 9. 3. FAO No.419 of 1993 SMT. SAVITRI GAKHAR AND OTHERS ...APPELLANTS VERSUS STATE OF HARYANA AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. FAO No.1749 of 1992 -2- 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. NEERAJ KHANNA, ADVCOATE FOR THE APPELLANTS. MR. KUNAL GARG, AAG, HARYANA FOR RESPONDENTS NO.1 AND 2. NONE FOR RESPONDENTS NO.2, 5, AND 6. MR. R.C. GUPTA, ADVOCATE FOR RESPONDENTS NO.4 AND 7. K.KANNAN, J.(ORAL) 1. All the appeals are connected. The appeals FAO No.1749 of 1992 and FAO No.441 of 1993 address the issue of liability of the insurance company in the appeals filed by the company. FAO No.419 of 1993 is for enhancement of claim of compensation for death of a person who was aged 44 years and was a partner in a business in M/s Om Medicals. 2. The claims were at the instance of the driver of the bus in FAO No.1749 of 1992 and at the instance of a passenger in FAO No.441 of 1993. The Tribunal found, in the case of collision between the bus and the truck, that the respective drivers were responsible for the accident equally and apportioned the liability as 50:50. Both the vehicles have been insured to the same insurance companies, namely, National Insurance Company. Bhola Nath, driver of the truck produced a copy of licence that was said to have been issued by the Licencing Authority at Guwahati. The insurer had secured a verification of the licence to say that it was fake. The insurer had made an attempt to establish a fact of what was brought through verification by issue came under Order 26 CPC. The Tribunal rejected the issue of FAO No.1749 of 1992 -3- driving licence as irrelevant. The approach of the Tribunal was clearly wrong and this was certainly relevant for considering the issue of recoveries against the owner and the driver if the breach was established. 3. The award passed in respective cases which are subject matter in appeal in FAO No.1749 of 1992 and FAO No.441 of 1993 are accordingly modified to make the insurer liable for the entire amount, but the question of entitlement of recovery will follow an adjudication whether driver Bhola Nath had a valid licence or not at the relevant time of accident. The claimants shall not be necessary to participate in such an adjudication for, it is essentially a matter of inter-se dispute between the insurer and the insured. The matters are sent for fresh adjudication as regards the issue regarding driving licence of the driver of the truck which was involved in the accident. 4. FAO No.419 of 1993 is for enhancement of claim of compensation. The deceased was said to be a partner in M/s Om Medicals since the year 1971 and he had a stake of 50% in the profit and loss of the business. Before the Tribunal the income returns had been produced and the I.T. Returns for the last year before his death showed that his share of income was `22,426/-. The Tribunal took the dependency at `16,000/- per year and adopted a multiplier of 16 and awarded a compensation of `2,56,000/-. The grievance of the appellants is that the business was gradually improving every year and the Tribunal ought to have provided for at least 30% increase on the prospect of increase in income over the period of years and also provided for a lesser amount for deduction for personal expenses. The I.T. Returns showed an income to be `22,426/- for 10 months, I will take that to be `22,500/- for a whole year for the fact of FAO No.1749 of 1992 -4- prospect of increase. If instead of 1/3rd deduction, 1/4th must be adopted in terms of the judgement of the Hon'ble Supreme Court in Sarla Verma vs. DTC, reported as 2009 6 SCC 121, and a multiplier of 14 is to be taken in the same manner as provided by said decision, the amount of loss of dependency will even be less than then what has been taken by the Tribunal. I will not make any modification relating to the loss of dependency and retain the same. However, the Tribunal has not provided for loss of consortium and loss of love and affection for the children and I will provide `10,000/- for loss of consortium and loss of love and affection and also make an additional compensation for `5000/- towards loss to estate and `2500/- towards funeral expenses. In this manner, there is an additional amount of `17,500/-. 5. Learned counsel appearing for the appellants would further point out that the Tribunal while providing interest made it conditional on payment within a period of one month. This condition was not immediately complied with on account of the a stay being operative at the appellate forum. In fairness, a denial of interest for a claim was not appropriate and particularly, when the appellant had also obtained an order of stay. I will, therefore, provide a uniform increase @ 7.5% on the total amount of compensation including amount which I have provided for additionally at 17,500/- in this judgement. The amount shall be distributed equally amongst all the claimants. 6. All the appeals are, therefore, allowed. But, as regards the subject matter of appeal in FAO No.1749 of 1992 and FAO No.441 of 1993, the amount shall remain as how they were assessed by the Tribunal, but only, in FAO No.419 of 1993 there shall be a modification on quantum of FAO No.1749 of 1992 -5- award. The issue of recovery of 50% from the owner and the driver of the truck shall depend on the outcome of the adjudication relating to the driving licence. 7. For appearance of parties before the Tribunal on 19.3.2011. February 21, 2011 (K.KANNAN) Gulati JUDGE