FAO No.2214 of 2006 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2214 of 2006 Date of Decision. 28.07.2010 United India Insurance Co. Ltd., Regional Office, 136, Feroze Gandhi Market, Ludhiana through its duly constituted attorney .........Appellant Versus Jasbir Kaur and others .......Respondents Present: Mr. Inderjit Sharma, Advocate and Mr. Pradeep Bedi, Advocate for the appellant. Mr. Tribhawan Singla, Advocate for respondent Nos.1 and 2. None for respondent Nos.3 to 6. Mr. Ashok Bector, Advocate for respondent No.7. 2. FAO No.281 of 2007 Jhalman Singh aged about 51 years son of Shri Mehar Singh resident of Nathowal, Tehsil Raikot, District Ludhiana .........Appellant Versus Mohinder Singh son of Jit Singh and others .......Respondents Present: Mr. Tribhawan Singla, Advocate for the appellant. None for respondent Nos.1 and 2. Mr. Inderjit Sharma, Advocate and Mr. Pradeep Bedi, Advocate for respondent No.3. 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. 1. Both the above cases arise out of the same accident involving the collision of a maruti zen car with a tata canter. This accident gave place to two claims, one for death of a passenger in the maruti car at the instance of the parents of the deceased and a FAO No.2214 of 2006 -2- claim for damage to the car by the owner of the maruti zen car. 2. FAO No.2214 of 2006 is an appeal against the award of compensation for death filed at the instance of the insurance company on the question of quantum and on liability on the ground that the driver did not have a valid driving licence, while FAO No.281 of 2007 is against the award dismissing the claim for damage to the car on a technical ground that the insurer of the car had not been impleaded as a party and the right of action should have been made only against the insurer. 3. The insurance company had the benefit of a defence on all grounds under Section 170 and challenges the quantum. The contention is that the deceased was a bachelor, aged 26 years and he was said to be an agriculturist. The Tribunal had assessed the income at Rs.15,000/- per month taking the contribution of the family to the parents at Rs.10,000/- and adopted a multiplier of 10 to provide for compensation of Rs.12,00,000/- with additional amounts for Rs.25,000/- on account of funeral expenses, Rs.1,00,000/- for loss on account of marriage preparation for deceased, which was said to have been taken place the next day and Rs.50,000/- as compensation being mental/physical distress to the parents. In all, an award of Rs.13,75,000/- had been ordered. The Tribunal found that the canter truck alone was responsible for the accident and awarded the amount to be payable by the insurer. The contention of the learned counsel for the insurance company is that the estate was still in tact and there was no proof that the deceased was earning more than Rs.15,000/- a month. As regards the liability FAO No.2214 of 2006 -3- that the driver did not have a valid driving licence, no argument was placed before me and therefore, I take up for consideration only with reference to the quantum of compensation as regards the case in FAO No.2214 of 2006. 4. If the negligence aspect is taken as having been concluded by a reasoned judgment, there was evidence that the deceased was cultivating about 51 acres of land, he was running a fish farm, poultry and dairy farming besides earning Rs.60,000/- per annum from the Village Samiti. It was brought out in the evidence that no land stood in the name of the deceased but the Tribunal reasoned that it was a matter of common knowledge that in agriculture communities, the land remained in the name of the father and the children would cultivate their own separately and the money would be pooled for the benefit of the entire family. The income details were said to contain in Ex.A6 to A-41 but unfortunately I do not have the benefit of the documents since the company that challenges the quantum has not thought it fit to file even the copies of the same. As regards the contention of the claimants that the deceased was earning about Rs.24 lacs per annum, the Court found that it was not acceptable in view of the fact that there are no documentary evidence and particularly with reference to income tax returns. If the claimants are only making a claim on the basis of income from agriculture, it may not be possible to produce any income tax returns by the scheme of the Income Tax Act that excludes income from agriculture for assessment. But still provision has to be made a consideration for managerial skills of a young person who looked FAO No.2214 of 2006 -4- after large agricultural fields to yield appropriate income from the estate. The entire income from agriculture cannot be taken as loss to estate since the agricultural lands are still available even after the death of the person. The only parameter for quantification shall be the economic loss to the estate by having to employ another person for managing such agricultural lands. It cannot be said for a person that was managing about 50 acres of land, the parents having become old, that the assessment of Rs.15,000/- as economic loss per month for the value of services of their son as too high. It will only be appropriate that 50% of the same should have been taken as going for his personal expenses and the remaining 50% should have been taken as the contribution to the parents viz., Rs.7,500/- per month. The annual dependency of the parents must be, therefore, taken to be Rs.90,000/-. There was in evidence the birth certificate of the deceased was produced as Ex.A119 and at the time of his death, the deceased was 31 years of age. The appropriate multiplier as laid down by the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121 could be 16. The amount that will be payable shall be Rs.14,40,000/-. The other conventional heads of the claim shall also be made such as loss to estate, loss of love and affection for the death of the son and funeral expenses. The Tribunal has awarded Rs.13,75,000/-. There is no cross appeal by the claimants for any enhancement. I do not, under the circumstances, feel obliged to make any enhancement but would retain the award already passed as appropriate and sufficient. The appeal in FAO No.2214 of 2006 is, therefore, dismissed. FAO No.2214 of 2006 -5- 5. As regards the claim of the owner for the vehicle in FAO No.281 of 2007, the dismissal of the claim has been made on the basis that the insurer of the maruti car zen must have been made as a party. Having regard to the finding rendered by the Tribunal that it was the tata canter, which was responsible for the accident, there was no need for making the insurer of the maruti zen car as a party. If it was a case of own damage claim, a refusal by the insurance company to such a claim will be impossible. Nothing is elicited whether the owner had claimed any amount from his own insurer for own damage to the vehicle. It had been brought in evidence that the damage to the vehicle was assessed by M/s Gaurav Motors, Barnala and Amar Motor Garage, Barnala. The estimate of the surveyor and the bills had been produced before the Tribunal but the Tribunal rejected the same on the ground that neither the surveyor nor the mechanic of the motor garage had been examined. The surveyor had given a report to the effect that the vehicle had been completely lost for any use and photographs had also been filed along with the report to show that a vehicle was not fit for repairs at all. One Harish Kumar Gupta was examined as surveyor PW-2 to show that the petitioner's loss would have been more than Rs.2,00,000/- towards the complete damage of the car. In a case where car was completely lost by damage and the surveyor was also examined, the Tribunal was in error in stating that the surveyor was not examined or that a motor mechanic had not been examined. There was sufficient basis for the Tribunal to have come to a finding that there was a total loss to the vehicle and it ought to have FAO No.2214 of 2006 -6- accepted the value as given by the surveyor less salvage to be Rs.2,00,000/-. The insurance company could be made answerable only to an extent of Rs.6,000/- for damage to property of a third party and the remaining amount has to be recovered only against the owner of the canter, which was responsible for the accident. The award of the Tribunal dismissing the petition is set aside and the appeal is allowed determining the compensation payable to the petitioner as Rs.2,00,000/- plus interest @ 7.5% from the date of the petition till the date of payment. However, liability of the claim shall be on the 3rd respondent in the appeal to the extent of Rs.6,000/- with interest @ 7.5% and the balance shall be recovered against the owner of the canter, who has arrayed as the 2nd respondent in the appeal. The driver of the canter shall not be personally liable by virtue of the vicarious liability cast on his employer, who is the owner of the vehicle. 6. The appeal in FAO No.281 of 2007 is allowed on the above terms. (K. KANNAN) JUDGE July 28, 2010 Pankaj*