FAO No.2787 of 1996 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2787 of 1996 Date of Decision. 31.08.2010 The New India Assurance Co. Ltd. SCO 36-37, Sector 17-A, Chandigarh through its Regional Manager ......Appellant Versus Avtar Kaur widow of Surinder Singh son of Amar Singh and others ......Respondents 2. X Obj No.69-CII of 1996 in/and FAO No.2788 of 1998 The New India Assurance Co. Ltd. SCO 36-37, Sector 17-A, Chandigarh through its Regional Manager ......Appellant Versus Avtar Singh son of Rattan Singh and others ......Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Ms. Gurnam Kaur Turka, Advocate for the respondent in FAO No.2787 of 1996. Mr. Harinder Singh, Advocate for the cross-objectors. 3. FAO No.2456 of 1996 Avtar Kaur widow of Surinder Singh son of Amar Singh and others ......Appellants Versus Goverdhan son of Mala Ram and others ......Respondents Present: Ms. Gurnam Kaur Turka, Advocate for the appellant. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the insurance company. FAO No.2787 of 1996 -2- CORAM:HON'BLE MR. JUSTICE K. KANNAN 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) 1. The three appeals are connected, of which two are by the insurance company against the liability cast on it. In the two cases filed, one is for death of the motor-cyclist and other is for injuries to pillion rider. There is cross appeal in FAO No.2788 of 1996 for compensation awarded to a person, who was injured in the accident. Another case in FAO No.2456 of 1996 is filed by the representatives of the person died in the accident for enhancement for compensation. 2. The accident was the result of a collision between the insured's tanker and the motor cycle driven by the deceased. The Tribunal found that the tanker was responsible for the accident and made the insurer liable. The contention at the trial was that the driving licence was not genuine and it was proved to be not a genuine document through the evidence of RW-2 that said that the licence was said to have been issued on Sunday, which was not even a working day. The owner of the vehicle examined himself and gave evidence to the effect that he had examined the licence before employing the driver and that he had bona fide belief that the licence was genuine. In my view, if the owner comes to Court and gives evidence, which is to the effect that he believed a particular driving licence to be genuine, that could itself be taken as sufficient FAO No.2787 of 1996 -3- to protect him and secure to him a right of indemnity from the insurer. 3. The awards of the Tribunal casting the liability on the insurer shall, therefore, require to be sustained and the appeals in FAO No.2787 and 2788 of 1996 filed by the insurance company are dismissed. 4. In the cross objection for enhancement of claim, the complainant would contend that he was aged 25 years of age and by the accident, he had suffered 52% disability. The certificate had been filed but no doctor was examined to support the certificate. It was a case of fracture of the leg for which an operation had been done and it was also in evidence that yet another surgery has to be performed for removal of some implants. The accident is said to have resulted in stiffness of the leg and the claimant gave evidence to the effect that he was an agriculturist and that he was not able to do any tough manual work in his fields. There was also a shortening of the limb and therefore, he had suffered a serious loss by his inability to work. The disability certificate produced cannot, in my view, be taken at its value without a doctor's evidence to support it. The assessment of disability at 52% itself seems suspect to me for even a case of amputation below knee would qualify for a loss only upto 50% of earning capacity and for stiffness of the limb, it cannot be as high as 52%. I am prepared to however accept the contention of the claimant that by the disability, which he has, he is unable to do manual work and that he is not able to carry on with his normal activities. The Tribunal has awarded Rs.50,000/- as compensation. FAO No.2787 of 1996 -4- While awarding compensation, the Tribunal rounded off the compensation to Rs.50,000/- without considering the relevant heads of claim. The evidence was that he had spent about Rs.20,000/- to Rs.25,000/- towards medical expenditures and Rs.5,000/- for special diet. It is in evidence that he had been originally treated at a local hospital and later transferred to the PGI, Chandigarh where a surgery had been performed and that the fracture reduced by implant. I would provide for Rs.20,000/- towards medical expenses and afford to the claimant Rs.5,000/- towards attendant charges. For transportation, I would provide for Rs.10,000/- and make an additional amount of Rs.15,000/- towards pain and suffering. I would take the loss of earning capacity for a person, who had stiffness of the leg and who would be inconvenienced from doing manual work at 25% and going to the fact that he was merely 25 years of age, I would assume the loss of earning power to the tune of Rs.1250/- per month and take his annual income to be about Rs.15,000/-. I would take the extent of loss occasioned to him at Rs.3750/- and adopt a multiplier of 18. The loss of earning by virtue of the disability could be taken as Rs.67,500/-. The amount in excess shall attract the interest @6% from the date of the petition till the date of payment. 5. While granting the awards, the insurance company has been made to bear a liability only to the tune of 75% and the remaining 25% has been directed to be paid by the owner and driver on the ground that owner had been negligent in not properly exercising care whether licence was genuine or not. This is rather a FAO No.2787 of 1996 -5- strange legal reasoning, for if his belief that he had looked into the licence was accepted and the insurance company had been made liable in spite of proof that the licence was fake, there was no way by which the Tribunal could have admonished the owner by directing him to take on a portion of liability. There is no half way house to making the insurer liable for only a portion of the award. If the insurer was liable then he was liable in full. The apportionment of liability between the owner and the insurer as determined by the Tribunal is set aside and the entire liability as determined by the Tribunal will be borne only by the insurer in the two cases. 6. The cross objection filed by the claimant for enhancement in FAO No.2788 of 1996 is allowed and the awards passed by the Tribunal are also modified casting the liability only on the insurer and exonerating the owner of the vehicle. 7. There is also an appeal in FAO No.2456 of 1996 for enhancement of compensation for the death of one Surinder Singh by his wife Avtar Kaur and others. The Tribunal has taken the income of the deceased to be Rs.1500/- per month determining Rs.18,000/- as the annual income and provided for Rs.6,000/- towards personal consumption and applied multiplier of 14 for arriving at the compensation. The claimants would contend that the choice of multiplier was wrong and the amount was inadequately assessed. The deceased was only aged 28 and even if the income were to be taken merely as Rs.15,000/- per month, I would provide for a 1/3rd deduction for personal expenses and take the contribution to the family at Rs.12,000/- and after adopting multiplier of 18, the FAO No.2787 of 1996 -6- amount payable would come to Rs.2,16,000/- The Tribunal has awarded Rs.14,000/- towards loss of consortium and other conventional heads of claim for funeral expenses and loss to estate. The same shall be retained, for that would take the compensation at Rs.2,30,000/-. The Tribunal has assessed a compensation of Rs.1,70,000/- and an amount of Rs.60,000/- shall be the additional amount that shall become payable. The additional amount shall bear also interest @6% from the date of the accident till the date of the payment. 8. The insurer shall bear the entire liability as is done in other cases. The appeal in FAO No.2456 of 1996 by the claimant is allowed to the above extent. (K. KANNAN) JUDGE August 31, 2010 Pankaj*