FAO No.2546 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2546 of 2001 Date of Decision. 11.08.2010 New India Assurance Company Limited through its Regional Manager, Sector 17-A, Chandigarh ......Appellant Versus Birmati widow of Shri Tara Chand, resident of Depal, Tehsil and District Hisar and others ......Respondents Present: Mr. Ashwani Talwar, Advocate for the appellant. Mr. Gopal Mittal, Advocate for the respondents. 2. FAO No.2253 of 2001 Birmati and others ......Appellants Versus Som Nath and others ......Respondents Present: Mr. Gopal Mittal, Advocate for the appellants. Mr. Ashwani Talwar, 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.(ORAL) 1. Both the appeals arise out of the same accident. The insurance company is challenging the awards on the ground of liability and claimants are contesting for enhancement of FAO No.2546 of 2001 -2- compensation. As regards the issue of liability, learned counsel appearing for the insurance company would contend that the driver did not have a valid driving licence and in a case where the driver and owner remained ex parte, the insurance company had produced proof by summoning the Ahalmad of the Criminal Court to show that the driving licence had not been seized by the police and it had not been produced before the Criminal Court. In my view, the fact that the driving licence had not been produced before the Criminal Court cannot be itself evidence that the driver did not have a driving licence; nor could the fact that the driver and owner remained ex parte be sufficient to discharge the onus of insurer unless he had taken steps in some way to serve a notice on the owner or the driver to cause the production of the licence. If only some steps had been taken by the insurance company to cause the production of the driving licence, such contention could be urged that the driver did not have a valid driving licence. The insurance company had failed to discharge the onus, which was heavily on its shoulders. I confirm, therefore, the issue of liability that the insurer shall not merely be liable to pay the claimants but also indemnify the insured. The appeals filed by the insurance company is dismissed. 2. As regards the issue of compensation, the consideration of the said issue will address the plea of the claimants seeking for enhancement in the connected appeal. The deceased was a 40 years old person, who had six dependents including three minor children. He was said to be a B.A., B.Ed. Graduate and making his living by conducting tuition and attending to agricultural operations in his FAO No.2546 of 2001 -3- land, which was an extent of about 2.75 crores. The learned counsel appearing for the claimants argues that the Tribunal did not take into account the loss of managerial skills of the deceased for his operation in agricultural land and took the income of the deceased at Rs.2500/-. He had a large family of six persons to support and it is inconceivable that a person could have carried on comfortably in his life owning agricultural land also earning just Rs.2500/-. I do not find the assumption of income by his tuition itself to be inappropriate but the Tribunal ought to have taken note of the fact that the deceased was admittedly owning 2.75 acres of land and I would estimate the loss arisen due to managerial skills of the deceased at Rs.15,000/- per year for property around 3 acres. The income from his tuition, I would enhance it from Rs.2500/- per month to Rs.3,000/-. In all, the actual income of the deceased could be taken as Rs.51,000/- per year. Instead of providing for 1/3rd deduction for personal expenses, having regard to the large size of the family, I would provide for a lesser deduction of 1/5th and take the contribution to the family as Rs.40,800/-. He was aged 40 years and I would apply a multiplier of 15. The amount payable would be Rs.6,12,000/-. The deceased had a prolonged treatment before his death, he having been paralyzed beneath his neck due to spinal injuries. The Tribunal had already assessed the claim for medical expenses for Rs.2 lacs. This amount shall also be added and that would make the compensation at Rs.8,11,000/-. I would add the conventional heads to round it off to Rs.8,25,000/-. The Tribunal has already awarded Rs.5,20,000/- and the amount i.e. now FAO No.2546 of 2001 -4- determined in excess of what was already determined shall be become payable with interest @6% from the date of filing of the claim petition till the date of payment. 3. The appeal filed by the claimants is allowed to the above extent. (K. KANNAN) JUDGE August 11, 2010 Pankaj*