IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.904 of 1993 (O&M) Date of decision:11.05.2011 Miss Manjeet Kaur and others ...Appellants versus Sh. Balbir Kumar and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ashit Malik, Advocate, for the appellants. None for respondents 1, 2 and 5 to 10. Mr. Sanjiv Pabbi, Advocate, for respondent No.3. Mr. Satbir Singh Goripuria, DAG, Haryana, for respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The appeal is by the claimants seeking for enhancement of compensation and also making a plea for allowing the award in favour of some of the claimants which was dismissed on the point of limitation. There is also a prayer to make the Insurance Company liable in a situation where the Insurance Company was exonerated. 2. The issue of limitation have no longer any value, in view of the changed position under the Motor Vehicles Act removing the bar of FAO No.904 of 1993 (O&M) - 2 - limitation for all past and pending claims. So long as the case is still pending, the bar of limitation will have no value in terms of the decision of the Hon'ble Supreme Court in Dhannalal Versus D.P.Vijayvargiya and others-(1996) 4 Supreme Court Cases 652. The case is, therefore, undertaken for reappraisal for determination of compensation for all the claimants. 3. The deceased was 38 years of age and had besides his widow, 7 children surviving him on the date of his death. Of the 7 children, 3 had been married of. If the number of claimants were to be taken as 5, the reduction that would become possible for personal expenses would be 1/4th and taking the income as accepted by the Tribunal at Rs.1,600/-, the contribution to the family must have been taken as Rs.1,200/- per month. Since he was aged 38 years and the contribution is taken to be on a modest scale, I will adopt a multiplier of 16 and take the loss of dependency at Rs.2,30,400/-. I will provide for Rs.5,000/- for loss of consortium to the wife and Rs.2,500/- for each of the three minor children who survived the father. I will make further provision of Rs.2,500/- towards loss to estate and another Rs.2,000/- for funeral expenses. The total compensation will be Rs.2,47,400/-. The amount in excess of what has been determined by the Tribunal already shall attract interest at 6% from the date of petition till date of payment. The amount shall be distributed amongst the appellants and the amount already paid under the award for some of the claimants will also attract interest at 6%. In the manner of liability, the contention is that the Insurance Company took a defence that it had issued a notice to the FAO No.904 of 1993 (O&M) - 3 - driver to produce the driving licence and since it was not produced, there was a presumption that the driver was not duly licensed. This, the Tribunal took to be a proof of the fact that the Insurance Company had established that the driver did not have a valid driving licence. A negative fact cannot be proved in any other manner than making possible an inference that if there was a licence, it should have been produced. For any breach of violation of terms of policy, the Insurance Company shall still be liable to the claimants and it shall have a right of recovery against the owner/driver. I will, therefore, modify the issue of liability also to make the Insurance Company satisfy the claims and recover the same against the owner and driver. The award is modified and the appeal is allowed to the above extent. (K.KANNAN) JUDGE 11.05.2011 sanjeev