IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.231 of 1991 Date of decision:09.09.2010 The Oriental Insurance Company Limited ....Appellant versus Smt. Dharam Kaur and others ...Respondents II. FAO No.390 of 1991 Raj Kumar and another ....Appellants versus Smt. Dharam Kaur and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. D.P. Gupta, Advocate, for the appellant in FAO No.231 of 1991 and Mr. Rajat Khanna, Advocate, for respondent No.6 in FAO No.390 of 1991. Mr. Rakesh Nagpal, Advocate, for the applicant in CM No.8552-CII of 1991. Mr. Mahipal Singh, Advocate, for Mr. Ashish Kapoor, Advocate, for the appellants in FAO No.390 of 1991 and for respondents 6 and 7 in FAO No.231 of 1991. Mr. Ravinder Arora, Advocate, and Mr. Paul S. Saini, Advocate, for New India Assurance Company, for respondent No.9 in FAO No.390 of 1991. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral) CM No.8552-CII of 1991 Delay of 174 days in filing the appeal is condoned. I. FAO No.231 of 1991 1. The appeal in FAO No.231 of 1991 is by the Insurance FAO No.231 of 1991 - 2 - Company seeking for restriction of liability for a claim arising out of death of a third party to the truck. The Tribunal had awarded Rs.2,30,400/- as compensation payable and the Insurance Company contended that since the accident took place on 21.04.1988 which was prior to the commencement of the Motor Vehicles Act of 1988. The Act that was applicable was the Motor Vehicles Act of 1939. The contention of the insurer is that as per the terms of Section 95(2)(a), the liability of the insurer shall stand restricted only to Rs.1,50,000/-. It was contended that no extra premium had been paid for a liability in excess of Rs.1,50,000/-. The case is of the year 1991 and I find that the records still not available in Court. A copy of the policy said to have been filed and marked as Ex.R8, is not produced by the insurer although his contention was solely on a plea of the policy restricting his liability. 2. I cannot accommodate a plea that there was any restriction under old Act for the restriction which the Act contemplated was only for workman travelling in the vehicle. Indeed the provision for insurance cover for passengers does not even apply to a goods carriage which apply only to stage carriages or passengers carrying vehicles. As far as the third party is concerned, there existed no restriction of liability. Unless there is a specific clause restricting the liability under the policy of insurance, I cannot accept the plea of the insurer. The appeal by the Insurance Company seeking for restriction of liability on an alleged limitation of liability under 1939 Act, in my view, is misplaced. The appeal in FAO No.231 of 1991 is, therefore, dismissed. FAO No.231 of 1991 - 3 - II. FAO No.390 of 1991 3. The owner has himself preferred an appeal in FAO No.390 of 1991, apprehensive as he was perhaps that there could be a liability fastened on him for the claim. Since I have held in a connected appeal that the insured's liability could not be restricted, the owner cannot treat himself as in any way aggrieved. The appeal by the owner is, therefore, dismissed as infructuous. 4. On the issue of quantum, there is an appeal for enhancement by the representatives of the deceased, who was said to be an employee of MTNL, a public sector undertaking. The salary certificate produced before the Tribunal was Rs.2,243/- and the grievance of the claimants is that the Tribunal did not provide for prospect of further increase in salary. I would adopt the formula given by the decision of the Hon'ble Supreme Court in Sarla Verma and others Versus Delhi Transport Corporation and another-2009 ACJ 1298 and take additional 30% as the prospect of future increase for a person aged 40 years. The increase would be Rs.672.90/- and the average salary could be taken as Rs.3,000/-. The claimants were the widow and four children. I would make a deduction of 1/5th for his personal expenses and take the monthly contribution to the family as Rs.2,400/-. The yearly dependency would work out to Rs.28,800/- and if I adopt the multiplier of 15, the amount that would become payable would be Rs.4,32,000/-. I would provide for an additional amount of Rs.5,000/- each for loss of consortium to the wife and loss of love and affection to each of the minor children, for that would come to Rs.4,57,000/- and I would add an additional amount of FAO No.231 of 1991 - 4 - Rs.5,000/- towards loss to estate and towards funeral expenses. In all, the amount would come to Rs.4,62,000/-. The Tribunal has already awarded Rs.2,72,000/- and the amount in excess shall attract interest at 6% from the date of the petition till the date of the payment. The entire amount shall only from the Insurance Company, the insurer for the truck, who is the appellant in FAO No.231 of 1991. The appeal filed by the claimants is allowed to the above extent. (K.KANNAN) JUDGE 09.09.2010 sanjeev