IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.40-CII of 2003 in/and FAO No.432 of 2003 (O&M) Date of decision:15.09.2010 United India Assurance Company Limited ....Appellant versus Sarita Devi and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Suman Jain, Advocate, and Mr. Manmohan, Advocate, for the appellant. Mr. Sanjay Jain, Advocate, for Mr. Rajiv Verma, Advocate, for the cross-objector/respondent. Mr. K.S.Sidhu, Advocate, for respondent No.4. ---- 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. The appeal is by the Insurance Company challenging liability on the ground that there was no apportionment of liability made by the Tribunal in a case of a collision between two vehicles, namely of the car and the mini bus that resulted in a further collision with the deceased cyclist. As far as the claimants were concerned, therefore it was a case of composite negligence of two vehicles that resulted in his death. The deceased was 22 years of age and the claimants were his FAO No.432 of 2003 (O&M) - 2 - widow, who was a deaf and dumb person, a minor child and mother. He was said to be a mason. 2. In a case where composite negligence is pleaded and an adjudication is required to be made, the Tribunal is bound to apportion the liability between two vehicles. It could quite different where the claimants chooses to file a case only against one of them in which case the apportionment of liability is not necessary and it may be left to the party, who has been impleaded to secure an appropriate adjudication in an independent action against the joint tort feasor for apportioning the liability. The Tribunal has found them to be jointly and severally liable and I would attribute to that as meaning 50% liability for each one of the vehicles namely the car and the mini bus. 3. The learned counsel for the appellant would contend that the insured's car driver had not been even challaned and the criminal case had been registered only against the driver of the mini bus. I cannot permit such a contention to be made by the insurer, for, it is not one of the permissible defences. I would rest the case of apportionment at 50% on the respective insured of the two vehicles by the finding already rendered by the Court that both the vehicles were jointly and severally liable. I do not want to detain myself on the forensics of reasoning for determining the actual percentage of liability for each one of the vehicles, since it cannot be reopened now in appeal at the instance of the insurer when the insured himself is not a party challenging the appeal. 4. As regards the quantum which is the subject of challenge in the cross appeal filed by the claimants, the Tribunal had taken Rs.3,000/- FAO No.432 of 2003 (O&M) - 3 - as the income and it provided for a 1/3rd deduction and took the monthly dependence of the family to be Rs.2,000/-. I retain the same, but I would take the multiplier to be 18 instead of 16 as adopted by the Tribunal and find the extent of dependence to be Rs.4,32,000/-. I would add conventional heads of claim towards loss of consortium, loss to estate and funeral expenses, an additional sum of Rs.18,000/- and award Rs.4,50,000/- as compensation payable. The same in excess shall bear interest at 6% from the date of the petition till the date of payment. 5. At the Tribunal, the mother of the deceased was granted Rs.28,000/-. The same shall be increased as Rs.50,000/-. The remaining 4 lakhs shall be divided equally to the widow and the minor child. The accident had taken place in the year 1997 and having regard to the fact that 13 years have already elapsed, I would allow for 75% of the amount to be paid for the wife's share to be released immediately to her and the remaining 25% shall be retained for a term of five years, the first moiety for a period of one year and the second for the period of two years and so on for the 5th moiety shall be for 5 years. The amounts shall be released to her on attaining the respective maturity of the deposits. The minors' share shall be kept in deposit during the minority and shall be released to him on attaining majority. The cross appeal is allowed on the above terms. (K.KANNAN) JUDGE 15.09.2010 sanjeev