FAO No.1756 of 2004 & FAO No.2291 of 2004 1 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH FAO No.1756 of 2004 Date of Decision: 27.10.2010 National Insurance Company Limited .....Appellant Vs Kiran Bala & ors. .....Respondents FAO No.2291 of 2004 Date of decision: 27.10.2010 Kiran Bala & ors. .....Appellants Vs Rai Singh & ors. .....Respondents CORAM : HON'BLE MR.JUSTICE K.KANNAN Present: Mr.L.M.Suri, Sr.Advocate, with Mr.Neeraj Khanna, Advocate, for the appellant, Mr.Vikas Behl, Advocate, counsel for the respondents. **** K.Kannan J. (Oral) 1. FAO No.1756 of 2004 & FAO No.2291 of 2004 are connected and arise out of the same accident, the former by the Insurance Company challenging quantum and liability on the issue of negligence and the latter by the claimant seeking for enhancement of compensation. 2. The claim arose out of the death of the motorcyclist who had dashed against the insured's jeep. Krishan Lal, PW1 gave evidence to the effect that he saw the deceased riding on his FAO No.1756 of 2004 & FAO No.2291 of 2004 2 motorcycle and was following the insured jeep. According to him, the insured jeep stoped the vehicle at the middle of the road without any indication suddenly and the motorcycle dashed against the jeep, fell down and taken to a private hospital immediately. He was later transported to government hospital where he succumbed to injuries. The site plan was also filed as evidence that revealed that the point of impact on the jeep was at the rear left side of the bumper. The vehicle has been noticed at the time when the sketch was drawn at the left side of the road. The site plan does not reveal any tyre marks at the middle of the road which would have existed when a sudden application of brake has been made either by the jeep or the motorcyclist. The driver himself was examined and denied the suggestion that the accident took place only on account of his negligence in driving. There was even a plea in the joint written statement by the driver and the owner that the accident took place only by the negligent act of the motorcyclist himself. The Tribunal found the jeep to be wholly responsible for the accident. I cannot subscribe to such a finding for it was not a head on collission but a case of a deceased striking the insured jeep on the rear left side. Even a sudden application of brakes by a vehicle going in front could not have caused an accident if the motorcyclist following the same had applied sufficient caution. The deceased himself must be taken as also responsible in some measure and on the basis of evidence I would place an equal responsibility for the accident between the driver of FAO No.1756 of 2004 & FAO No.2291 of 2004 3 the jeep and the deceased. The issue of negligence would, therefore, stand re-apprised to rest an equal responsibility between drivers of both the vehicles. 3. The deceased was an LIC agent and he was also stated to be Unani medical practitioner. He was an income tax assessee and just before the accident, for the assessment year 2002-03, his total income was Rs.63,429.01. The income as per the income tax return submitted as Exhibit P5 showed that the amount less tax was Rs.61,341. This amount is taken to be the basis of the calculation of the compensation. The learned counsel appearing for the claimants has objection to the mode of assessment stating that the Tribunal did not appropriately take into account the future prospect of income and it has also committed clerical mistake in arriving at the value of multiplier and multiplicand. Even on the choice of the multiplier, the contention was that he was 30 years of age and the appropriate multiplier would be 16. The quantum of compensation for persons who fall outside the range of Schedule II has been considered by the Hon'ble Supreme Court in Sarla Verma Vs Delhi Transport Corporation 2006 4 SCC Page 121. The Hon'ble Supreme Court had also laid down that when the deceased is in government service and has a security tenure, provision for future increase shall be made 50% for the age group of 30-40 years and 30% for the age group of 40-50. The learned counsel appearing for the Insurance Company would contest the plea for the provision for increase in salary and points out that the Hon'ble FAO No.1756 of 2004 & FAO No.2291 of 2004 4 Supreme Court was dealing only with situations where there was a prospect of increase in salary through government service. In my view, it shall not be taking the correct lesson from the judgment of the Hon'ble Supreme Court by restricting the provision for increase in income only to government employees. We have come through a liberal market situation where the persons employeed in private sector and self-employeed do rather better than even persons in government service. A person in self-employment or in a sound private sector employment cannot be said to be at disadvantage than persons who are in government service. In this case, the deceased was an agent in a Government of India undertaking, viz., the Life Insurance Corporation of India and the Branch Manager had given the details of the commission earned by him over the period of years from 1993-94 up-to October, 2002. The figures are as follows: "Year Total 1993-94 Rs.3051.90 1994-95 Rs.11622.78 1995-96 Rs.18262.32 1996-97 Rs.26242.25 1997-98 Rs.45661.08 1998-99 Rs.113656.05 1999-2K Rs.158290.40 2000-01 Rs.171071.66 2001-02 Rs.192059.70 Upto Oct., 2002 Rs.1,13,683.88" 4. It seems that the deceased had an ascendant graph FAO No.1756 of 2004 & FAO No.2291 of 2004 5 of his income and between the years 1993-94, when he started with Rs.351/-, it has increased to more than 60 times to Rs.1,71,071/- and in 2001-02, there was still a further increase of Rs.1,59,029/- and in Octorber,2002, the same rate of increase was being maintained. All this is only to find that the plea on behalf of the claimants would be fully justified and if there is a case made out for making a provision for increase, I shall not, however, give a projection of increase of salary in the manner that is seen from Exhibit P2 but will restrict it in the manner suggested in Sarla Verma's case (supra) viz. a provision of 50% increase as the average income of the deceased. 5. If the income is taken to be Rs.61,341, 50% increase would mean a resultant average income at Rs.90,000/- and 1/3rd deduction is to be make for personal expenses, the expenditure on dependents of the family would be Rs.61,341/-. I will adopt a multiplier of 17 and extend the loss of dependency at Rs.10,42,800/-. I shall assess Rs.10,000/- towards loss of consortium to the wife and Rs.5000/- for loss of life and affection for the children. I will add an additional amount of Rs.10,000/- for the loss to estate and make a further provision of Rs.5000/- for transportation; The total would be Rs.10,82,797/- and if the contributory negligence is factored found, the amount payable will be Rs.5,41,400/-. The Tribunal has already awarded an amount of Rs.6,50,000/- with interest @ 9%. I will retain the same percentage of interest as found by the Tribunal. The amount of compensation shall stand reduced to Rs.5,41,400/- and the FAO No.1756 of 2004 & FAO No.2291 of 2004 6 appeal by the Insurance Company shall be partly allowed and the appeal by the claimants seeking for enhancement will be dismissed in terms of the amount determined as above. The appeals are disposed of as above. 27.10.2010 (K.Kannan) sailesh Judge