94 9t Civil RevisionNoe4035of2001 08Ml a1e THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHe Civil RevisionNoe4035of2001 6082M1 Dateof Decision April 18 2011 NationalInsuranceCompany Limited Petitioner V Jasbir Kaur andothers r 0 CORAM HONBLE MRJUSTICE RAM CHAND GUPTA 0 Present2 MrHarsh AggarwalAdvocate I for thepetitioner C5 I MrlllCKinra Advocate for the Z RAM CHAND GUPTA J Ir I 1 The presentrevlSlon petition has been filed under Article 227 of the Constitution of India againstaward dated 1232011 passedby Z learnedMotor Accident Claims Tribunal Rohtak hereinafterto be referred QO as the in a petitionunder Section166 of the Motor Vehicles Act 1988 to be referredas theActOfor filed by e Z againstthe present Company alongwith driver and owner of truck bearingNoliR21GAJ0117 involved Qm in the accident I have heard learned counsel for the partiesand have gone through the hole recordcarefullyincludingtheimpugned awardpassedby learnedTribunal 3 Brief facts relevantfor the decision of presentrevlSlOll petitlOn are that on the nightof 831999 JagdishSingh was drivinghis car bearingNoDL2CK14175 while returning from Bikaner to Delhi alongwithNorangSinghhis brotherminelawhis wife Jasbir Kaur and Nasib Kaur When theyreached near Meham truck bearingNoHR 21GA10117came from oppositedirection which was beingdriven by lts Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 95 1 Civil Revision Noe4035of2001 08M1 a a veryrash and negligent manner and hit againsttheir car due which all theoccupants sustainedinjuriesJagdishSinghsuccumbedto the lnJUrieSin thehospital FIR NoA4 dated931999 under Sections279 337 304A IPC with Police Station Meham was against driver of the truck filed petitionfor on account of deathof JagdishSinghbeingwidow and son of JagdishSinghon the pIea thattheywere upon JagdishSinghTheyclaimed of10000001 Plea has beentaken thatJagdishSinghwas 50 yearsof age and was self employed and used to do transportbusiness under the name m and styleof Mls Rajasthan Prem Krishna TransportCompanyand used to 0 earn 1000010per monthfrom the said business 0 4 Joint written statement was filed by driver and owner of the I offending truck contesting thepetitionSeparate written statement was filed C5 by presentpetitionerie insurer of the truck I 5 On the of the parties the followinglssues were Z framedfor bylearnedTribunal 1 Whether the accident in questionbetween truck NoHRe21GA10117and Maruti Car NoDL2CK14175 had I taken placedue to rash and negligentdrivingof truck by nol2 OPP Z 2 Whether deathof JagdishSinghhadtakenpIacedue to f theinjuries sustainedbyhim during the accident in OPP W Z 3 Whether the are entitled to any if so to what amount and from whom2 OPP IQOJl 4 Whether nol was not holdinga valid drivinglicence at the timeof accident in OPR 5 Relief 6 Parties adduced evidenc 111 supportof their respective contentionsbefore learned Tribunal Learned Tribunal vide its impugned award held that are entitled to 7198001 as 3 alongwith interestc o per annum from the date of filingof petitiontill its realisation 7 Aggrievedagainstthe said award the presentrevlSlOn petition hasbeenfiled by Company Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 96 V Civil Revision NoA035 of2001 08M1 e 1 At thevery outset it hasbeen contendedbylearned the that presentrevlSlOn petition is not maintainable as Company could file appeal under Section173 of the Act which requires for deposit of 250001 and hence it is contendedthat as the said amounthas not been within periodof limitation for filingof appealand no appealwas filed by the present revlSlOn petition 1S not maintainabIe On the pointhe has placedreliance upon Baldev SinghVe KamaljitKaur AIR 2005NOC 93 P8iHl 1 r 9 On theother hand it hasbeen contendedbyleamed counselfor 0 the Company that in this case no appeal could be filed 0 by the InsuranceCompany as no was also filed bypetitioner I Insurance under Section 170 of the Act before learned Tribunal C5 making prayer to allow lt to contest theclaim petition on all the grounds I available to the insured Hence it is contended that when Z InsuranceCompany was havingno rightof appealto challenge theaward on merits theonlyremedy availablewith the was to invoke jurisdiction of this Court under Article 227 of the I Constitutionof Indiabyway of filingthepresentrevisionpetitionas on the veryface of it the awardpassedbylearnedTribunal is illegal He hasalso Z placed reliance upon a Division Bench of this Court in National Cll Insurance CompanyLimited and another V SmteBalbir Kaur and J others 200029 PLR750 wherein it was held that in case where insurance Z did not pleadany collusion betweenclaimantsand the insuredand m did not pleadthat insured failed to contest the claim and did not pray for it to contest the claim on any of the grounds available to the insured by filingproper application under Section 170 of the Act insurer cannot be allowed to challengethe award on ments by filingthe appeal before this Court under Section 173 of the Act Reliance has also been placedupon a judgmentrendered by Honble Apex Court in National Insurance CompanyLimited Chandigarhve Nicolletta Rohtagiand others200297 Supreme Court Cases 456 wherein as well it was held that insurer is havingrightto appealon the groundspennissible under Section 14929of the Act in case conditions embodiedin Section 170 of the Act are not satisfied and however where the conditions mentioned under Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 97 Civil RevisionNoe4035of2001 08M1 170 of the Act are satisfied and the Tribunal passes an order the insurer to avail the grounds available to the persons against whom the claim is made the insurer can contest theclaim on such grounds andin case of an adverseaward can file an appeal thequantum of or the findingsregardingnegligence of the offending vehicle and however mere omission on thepartof the insured to file an appeal under Section 173 of the Act wouldnot entitle the insurer to file an appeal challenging the quantumof or the findings negligence 1 r 10 Hence in View of this legal thereis no force in the 0 of learned counsel for the that O InsuranceCompany was havingrightto appealunder Section 173 of the Act I bydepositing Rs250001 and that as InsuranceCompany failed to file the C5 appealpresentrevision petition is not maintainable Rather in view of legal I settledby Division Bench of this Court in SmteBalbirKaur Z and otherss case supra andbyHonble ApexCourt in NicollettaRohtagi and otherss case supralin this case Insurance was havingno rightto file appealto challenge the award on merit as it had not obtained I of the Tribunal under Section 170 of the Act to contest the petition on all grounds available to the insured Z 11 Hence as Insurance Company was havingno rightto file CO appealthepresentrevisionpetition hasbeenfiled byInsuranceCompany to mw3 invoke of this Court under Article 227 of the Constitution of Z India on the pleathat on the very fac of it award passedby learned Tribunal is illegal 1l Only pointarguedby learned counsel for the petitioner InsuranceCompanyis that while discussing lncome of deceasedin para noll of the award learned Tribunal has relied upon copiesof various income tax returns of the decased and that the last income tax return for assessmentyear 199889 shows the income of deceased as 708801 on which 42601was paidas taxand that net income comes to 666201 It is further contended lat income tax returns for the previousyears were showingless lncome It is further contended that however learned Tribunalhad taken income of deceasedas 80001 per month without any basis and without even discussing as to how the earningof deceased was Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 98 4 Civil Revision No4035 of2001 OM e5a Learned counsel for the claimantshasnot beenable to show to this Court the basis on which income of deceasedwas takenby learned Tribunal as 80001 per month He has also placedreliance upon varlous tax returns filed bydeceasedduringhis lifeime regarding his income and the last income tax return is for the assessmentyear 199899 according to which his total income comes to 708801 per annum 13 Law hasbeenwell settledbyHonble ApexCourt in SmteSarla 1 Verma ve Delhi TransportCorporation200939RCR Civil9 RAJ 3731200962AICJ 2 2009 PLR 221200969 SCC 121 2009 AIR 0 SC93104 that in case deceasedwas self employed the Courts will usually 0 take only the actual income at the time of death for the purpose of I calculation of unless there are rare and exceptional cases C9 involvingspecialcircumstanc 14 In this case no such rare and specialcircumstancesare made Z out by learned Tribunal Hence the actual income of the deceased at the time of deathcan be taken as 708801 per annum as perincome tax return L for the assessment year 199889 and after deducting lncome tax paid 1 I 42601 the net income comes to 66620 which can be rounded off to Z 670001 and hence learned trial Court has committed illegalityand material in takingthe income of the deceasedas 80001eper OO month 7 15 Further thereis no dispute that deceasedwas 50 yearsof age as nss ueen held by learned Tribunal There is also no disputethat besides CL deceased thereare two ie his wife and son who are present Hence as per SmtSarla Verma and others case supra9113 of theincome can be deductedas personaland livingexpenses of deceased Furtherbytakinginto considerationthe ageof deceasedas per decision of SmtSarla Verma and others case supra9multiplier of 13 is to be appliedin this case Hence total compensationcomes to 67000x13x213 1eee 5806667 rounded off 5807001 In addition to this the are also held entitled for 10000 On accountof loss of consortium another 0001 on acount of loss of estate and 50001 as funeral expenses thus makingthe total compensation to Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 99 Civil RevisionNoe4035of2001 OSM1 m6e Il 007001 16 Hence the presentrevlSlOll petitioIl 1S partly accepted Impugned award passedby learned Tribunal is modified to the extent that are held entitled to 6007001 as alongwith future interest C o per annum from the date of filingof the petitiontill realisation Illlu April 18 2011 Ram Claauu tldl e2 4Czs meenu Judge 1 j CC Note2Whether to be referred to Reporter2 Yes8 0 0 I C5 I Z I Z 00 m Z Ll 9 1 Pooja 2012.08.06 10: 11 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document