IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.7313 of 2010 (O&M) Date of decision:25.04.2011 & FAO Nos.7314 to 7316 of 2010 (O&M) Iqbal Hassan and others ...Appellants versus Anoop Kumar and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Rakesh Kumar Sharma, Advocate, for the appellants. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The appeals are for enhancement of claim for compensation for death of the claimant's son, daughter-in-law and grand daughter. The son was aged 26 years, the daughter-in-law was 23 years and the grand daughter was 4 years of age. The son was said to be engaged with his father in agricultural operations assisting him for the holding of the father. The Tribunal took the value of the services of the son at Rs.3,600/- per month and after providing for 50%, applied a multiplier of 18 to assess the compensation of Rs.5,50,800/-. The learned counsel states that the income ought to have been assessed higher, for, without the assistance of the son, father would have to employ the services of FAO No.7313 of 2010 (O&M) - 2 - somebody else and incur expenses. I cannot accept this argument since the claim for compensation is for death of a son by a father where the son himself did not own any property and the father was making a claim for compensation as a dependent on his son. The value of the services of the son for the father's own land cannot be wholly factored to the father's benefit since the amount that could be quantified for the son's services cannot go wholly to him. The situation would be different if the son had owned some property and on his death, father would be able to make an assessment of the value of the services of the son on his land to make a claim for compensation. Here, the multiplier adopted was also slightly on higher side for the law is not that when the claim is at the instance of the parents that the choice of multiplier could be dependent on the age of the deceased. As per the decision in Shakti Devi Versus New India Insurance Company Limited and another-JT 2010 (12) SC 106, the multiplier must have been only with reference to the age of the parents. The compensation of Rs.5,50,800/- which the Tribunal had made is fair and just and, under the circumstances, definitely not deficient and I would find no reason for enhancement. 2. For the death of the daughter-in-law, the Tribunal had assessed a compensation of Rs.2,50,000/- and for death of a 4 years old grand daughter, the Tribunal has awarded Rs.1,50,000/-. It is truly a poignant situation that the parents in their old age must have lost their son, daughter-in-law and grand child, all of whose presence would have gone to improve the sum of happiness. In a case of loss of grand child, we are not really talking about the loss of dependency but see that as a FAO No.7313 of 2010 (O&M) - 3 - component loss of love and affection for the grand parents in their old age. The daughter-in-law's services in assisting the family in typical social conditions of India could in some way be even quantified in monetary terms and to that extent, an award of Rs.2,50,000/- for death of a daughter-in-law is also appropriate and just. The Tribunal had assessed the funeral expenses and transportation for all the three cases at Rs.15,000/-. The learned counsel for the appellants states that the provision for funeral expenses is low and insufficient. I cannot undertake an exercise for a reappraisal if it means that such an exercise were to be taken only for the funeral expenses. If the substantial heads of claim are properly assessed, I would take that to be sufficient and not find any reason to order notice in appeal only for a consideration of whether funeral expenses could have been granted relatively on a higher scale. The assessment of compensation for the death of three members of the family in the manner done by the Tribunal is appropriate and just and, in my view, there is no scope for enhancement. 3. As regards the damages for the motorcycle, the Tribunal had awarded Rs.10,960/- for actual repairs on the vehicle and for which, bills had been produced. The learned counsel states that the Tribunal had not assessed the loss for inability to use the vehicle for a period of time. The claim for damages under Section 168 for loss of property could only be the financial equivalent of the damages to the property and not the resultant loss by inability to use the vehicle. This has been held to be so in several decisions and would not require to be reopened for the purpose of assessing the the likely loss of income by non-user of the FAO No.7313 of 2010 (O&M) - 4 - vehicle during the period when the vehicle was in a state of disrepair. 4. Paraphrasing several judgments on the subject, MLJ-The Motor Vehicles Laws, Lexis Nexis Butterwarths-Wadhwa, Nagpur, 13th edition 2008 Volume-I, it is observed as follows:- “In measuring damages, there is no distinction between tort and contract. The general principle is restitutio in integrum. In determining the sum of money as reparation for a breach of contract as damages, as nearly as possible, get at that sum of money which will place the party injured in the same position as he would have been in as if the contract had been performed or in the case of tort as if he had not sustained the wrong for which compensation is being paid for. Appreciation of value to the motor vehicle or greater benefit or advantage due to repair or replacement of part or parts or accessories is only incidental to restitution and an inevitable and inseparable consequence. It is for the plaintiff to establish the factum of actual loss or damage suffered or the amount required or spent for replacement of part, or parts or accessories and reasonable repairing and fitting charges. The liability to indemnify the insured is limited to the contract. In no case it shall exceed the actual loss or damage or charges incurred subject to the maximum liability under the contract, whichever is less, one-third is to be deducted from the value of the replaced new parts or accessories. No FAO No.7313 of 2010 (O&M) - 5 - abstract principle could be laid. On facts and circumstances in a given case, it is open to a party to establish by adducing of evidence as to what is the actual loss suffered due to the accident or the parts involved in the accident and to what extent the insurance company is liable to indemnify the loss so suffered: United India Fire and General Insurance Company Limited Versus Mowli Bai, AIR 1985 Andh Pra 263:(1986) 60 Com Cas 372: (1986) 1 AccCC 433; Oriental Fire and General Insurance Company Limited Versus Sita Ram (1985) 2 AccCC 322 (Madh Pra). See also New India Assurance Company Limited Versus Yatendrasingh (2000) 2 AccCC 187 (Madh Pra((DB)” 5. The awards in all its aspects both as regards compensation for death and for damages to the property would require no intervention. They are confirmed and the appeals are dismissed. (K.KANNAN) JUDGE 25.04.2011 sanjeev