IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.34-CII of 2001 in/and FAO No.2472 of 2000 Date of decision:10.08.2010 New India Assurance Company Limited .....Appellant Versus Krishna Devi and others ....Respondents II. Cross Objection No.35-CII of 2001 in/and FAO No.2471 of 2000 New India Assurance Company Limited ...Appellant Versus Bimla and others ....Respondents Present: Mr. Neeraj Khanna, Advocate, for the appellant. Mr. Vinod K. Kataria, Advocate, for the respondent/objector. ----- 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 appeals are connected and are taken up together arising out of the same cause of action. There are also cross objections filed in both the appeals for enhancement of compensation by the claimants. FAO No.2472 of 2000 - 2 - 2. The deceased was said to be a driver and it was claimed that he was run over when he was sitting on the side of the road by the insured's vehicle. The accident is an admitted fact. It is contended that the accident took place by the breaking of the brake pipe as a result of which the vehicle had gone out of control. The driver did not even examine himself. The insurance company took a plea that the driver did not have a valid driving licence. The Tribunal took note of the fact that the negligence of the driver was clearly established and determined the compensation on the basis that the deceased must have had an income of Rs.2,000/- per month provided for a deduction of 1/3rd amount for personal expenses, adopted a multiplier of 12 and determined a compensation of Rs.2,90,000/-. 3. The appeal has been filed by the insurance company denying the liability on the ground that the driver did not have a valid driving licence and the permit had also not been produced in spite of demand. The plea of want of valid driving licence is not available to the insurer, in my view, in the light of the defence taken that the accident took place on account of breaking of brake rod, suggesting that the vehicle went out of control due to mechanical failure. The owner has to take responsibility for not keeping the vehicle in a state of disrepair and the negligence of the owner must, therefore, be taken to be the cause for the accident. The irrelevance of a driving licence in situations where the accident is due to vis major or mechanical failure was considered by the Hon'ble Supreme Court in National Insurance Company Limited Vs. Swaran Singh (2004) 3 SCC 279. If the accident seemed to be for a FAO No.2472 of 2000 - 3 - reason other than the driving capabilities, then the issue of want of licence will itself become irrelevant. The insurance shall, therefore, be clearly bound. The appeals are dismissed. Cross Objection No.34-CII of 2001 in FAO No.2472 of 2000 4. There has been a cross-appeal at the instance of the claimant for enhancement of the compensation. Against the claim of compensation for Rs.16,20,000/-, the Tribunal has awarded Rs.2,90,000/-. 5. Before the Tribunal, the claimants had examined one Gurmeet Singh, who was a partner of M/s Punjab Trader, Malout as PW- 3, who deposed that the deceased was working as a labour contractor, who would also supervise the work. The evidence was that between the period 1.4.1996 to 15.02.1997 i.e. for 10 months, he had been paid Rs.47,349/-. Though there was no counter evidence, the Tribunal thought that the average income could not have been more than Rs.3,000/- per month and took the monthly dependence of the claimants to Rs.2,000/- and adopted a multiplier of 12 to arrive at a compensation of Rs.2,90,000/-. When there was a definite evidence placed before the Tribunal that there was nothing elicited in the cross-examination of the independent witnesses, there was no reason to suspect the correctness of the statement. I take the monthly income to Rs.4500/- and taking note of the fact that he had four minor children at the time of his death, I will take the contribution to the family after providing for himself ¾th of his monthly income. So reckoned, the monthly dependence is taken as Rs.3100/- and annually the extent of dependence must be taken as FAO No.2472 of 2000 - 4 - Rs.37,200/-. For a person above 30 years, appropriate multiplier would have been 16. The compensation payable would be Rs.5,95,200/-. The loss of consortium for wife could be estimated Rs.10,000/- and for each of the four children, loss of love and affection could be taken as Rs.5,000/-. To this sum shall be added conventional heads of loss to estate as Rs.2500/- and another Rs.2500/- as funeral expenses. In all, the amount will be as Rs.6,15,200/-, which can be rounded off as Rs.6,15,000/-. The additional sum over what is already awarded, shall bear interest @7.5% from the date of the award of the Tribunal. This shall be paid by the insurance company, which is appellant, with the right of recovery granted against the insured. 6. The cross appeal is allowed to the above extent. Cross Objection No.35-CII of 2001 in FAO No.2471 of 2000 7. There is also a cross appeal for enhancement of the compensation at the instance of the claimants who are the widow and two minor children. Before the Tribunal, there was evidence to the effect that the deceased was a driver of the tractor and the employer had been examined, who gave evidence to the effect that he was paying him Rs.18,500/- per annum. He also produced account book for the same, which is marked as Ex.P-2. The Tribunal had taken the income of the deceased at Rs.1850/- and fixed the dependency to the tune of Rs.1350/- and adopted a multiplier of 12 and added Rs.5600/- towards funeral expenses. In my view, the choice of multiplier was wrong. Taking the monthly dependence at Rs.1350/-, the annual dependence would have yielded to Rs.16,200/-. The deceased was aged 30 years and appropriate FAO No.2472 of 2000 - 5 - multiplier should have been taken as 16, providing a sum of Rs.2,59,200/-. The Tribunal ought to have provided for an additional sum of Rs.10,000/- towards the loss of consortium for the wife and Rs.5,000/- for each of the minor children. There shall be also a further provision for loss to estate at Rs.5,000/-. An additional amount of Rs.25,000/- to the above sum shall also be added, in all providing for a compensation of Rs.2,84,200/-. The Tribunal has already awarded Rs.2,00,000/- and therefore, there shall be an additional amount of Rs.84,200/-. The additional amount shall bear an interest of 7.5% from the date of award of the Tribunal till the date of payment. 8. The additional amount shall also be taken equally. While the widow and the major claimant could be permitted to withdraw the same, the share of the minor children shall remain in Fixed Deposit in a Nationalized Bank and the children will be entitled to withdrawal of interest quarterly. The claimants are at liberty to suggest an appropriate scheme of investment in any Nationalized Bank, which yields the maximum returns to the Tribunal. The 1st respondent Bimla is reported to have died on 08.06.2006 after the appeal and the cross-appeal have been filed. There shall be no abatement to the claim and her entitlement would devolve on her children equally, namely to the respondents 2 to 4. Since the death has occasioned after an award was passed, even the amount determined as loss of consortium will avail to the estate of the deceased Bimla. Amongst the claimants, any person, who become major, shall be entitled to recover the share in full, while as regards the share of the minor children, the same shall be kept in deposit during the minority FAO No.2472 of 2000 - 6 - and shall become payable on attaining majority. The investment shall be made in a nationalized bank yielding interest quarterly and it shall be paid to the person, who acts as a guardian of the minor children. 9. The cross-appeals are allowed to the above extent. (K.KANNAN) JUDGE 10 .08.2010 sanjeev/pankaj