F.A.O.NO. 1219 OF 1997and 1 Cross Objection NO. 88-CII of 1997 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1219 OF 1997 and Cross Objection NO. 88-CII of 1997 Date of decision: 19th July, 2010 The National Insurance Company Ltd. .......Appellant Versus Jagir Kaur and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Deepak Suri, Advocate, for the appellant. Mr. Sanjay Jain, Advocate, for respondent Nos. 1 to 4. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal challenging the award passed against it that inspite of the plea that the driver did not have a valid driving licence and an application had also been filed for production of the same, it had been wrongly made liable. The Insurance Company also had served a notice to produce the document in Court and inspite of the notice the counsel who was appearing on behalf of the insured and the driver did not produce the same. In a case, where the insurer was interested in showing that there had been breach of terms of the policy by the insured, not employing a person who had a valid driving licence, the F.A.O.NO. 1219 OF 1997and 2 Cross Objection NO. 88-CII of 1997 burden must be deemed to have discharged when the insurer had done every act which is possible to obtain its production. If it was still not done the contention that the insured had committed a breach of terms of policy must be taken as established. 2. Learned counsel appearing for the respondents however, points out that the Insurance Company had not taken steps to summon the records from the criminal courts to satisfy the court that the insurer had taken steps to secure the production of the document from the criminal courts. I am of the view that such an exercise will have no meaning unless it is shown that there was a copy of driving licence before the criminal court and it was deliberately not produced by the insurer to escape liability for satisfying the claim and denying the right of indemnity to the insurer. I do not think such a course is necessary when the insured and the driver were represented through counsel and despite notice, it was not produced. I find however, that even if driver did not have a valid driving licence, the insurer will be liable to satisfy the claim of the claimants and obtain a right of recovery against the insured. 3. There is a cross objection for enhancement of a compensation at the instance of the claimants. The deceased was 45 years old and he had left behind widow and three children. He was working in railways and the Tribunal had given due provision for increase in emoluments and took monthly income to be Rs. 3,120/-, provided for a deduction of 1/3rd and adopted a multiplier of 14 to give the compensation at Rs. F.A.O.NO. 1219 OF 1997and 3 Cross Objection NO. 88-CII of 1997 3,84,000/-. Learned counsel appearing for the claimants contend that the conventional heads of claim as provided under the Motor Vehicles Act for a deceased person have not been provided. It was also his contention that for a family that had four dependants, the appropriate deduction should have only 1/4th and not 1/3rd. I accept the contention and hold that 1/4th alone should have been provided as going for personal expenses and the remaining ought to have been taken as constituting the extent of dependence by the family. So reckoned monthly dependence could have been Rs.2,340/- and adopting a multiplier of 14 for the annual dependence the amount payable would be Rs. 3,93,120/-. The loss of consortium for the wife ought to be provided as Rs. 10,000/-, for funeral expenses and loss to estate an additional sum of Rs. 5,000/- each under each one of the heads shall be provided. In all the amount under all heads that would become payable to be Rs. 4,13,120/-, the court had already granted a compensation under all heads at Rs.3,84,000/- and the increase shall therefore, be round it of at Rs. 29,000/-. This amount shall bear interest at 7.5% from the date of the award of the Court below till the date of payment. 4. The appeal is allowed to the extent of provided for a right of recovery for the insurer and the cross appeal is allowed to the above extent. [K.KANNAN] JUDGE 19th July, 2010 Shivani Kaushik