FAO No.1000 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1000 of 2007 Date of Decision. 26.08.2010 M/s United India Insurance Co. Ltd., SCO No.177-178, Sector 8-C, Chandigarh, Regional Office, SCO No.123-124, Sector 17-B, Chandigarh ......Appellant Versus Sarabjit Kaur Boparai wife of Kirpal Singh Boparai and others ......Respondents Present: Mr. R.K. Bashamboo, Advocate for the appellant. Mr. Kasturi Lal, Advocate for the respondents. 2. FAO No.2046 of 2007 Sarabjit Kaur Boparai wife of Kirpal Singh Boparai ......Appellant Versus Satvir son of Charan Singh and others .....Respondents Present: Mr. Kasturi Lal, Advocate for the appellant. None for respondent Nos.1 to 4. Mr. R.K. Bashamboo, Advocate for respondent No.5. 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? -.- FAO No.1000 of 2007 -2- K. KANNAN J. 1. The above two appeals arise out of the same accident resulting in injuries to a claimant for amputation of her hand. FAO No.1000 of 2007 is an appeal filed by the insurer on the question of apportionment of liability and the quantum, the insurer having had the benefit of defence on all grounds under Section 170 of the Motor Vehicles Act. FAO No.2046 of 2007 is at the instance of the claimant seeking for enhancement of compensation. 2. The version of the claimant was that she was travelling in a Ford Icon car driven by her nephew and the accident took place when the tractor, which was going ahead of them took a sudden turn and the Ford Icon car dashed against the tractor from behind. The accident took place on 31.08.2001 and the case was filed on 24.08.2002, unwilling as she was, to sound herself against her nephew for the negligence in his driving. The tractor had not been insured and according to learned counsel appearing on behalf of the insurer, since the vehicle in which she was travelling alone was insured, she was prepared to turn the tables on her own nephew and claimed that the driver of the Ford Icon car alone was responsible for the accident and sought to make the insurer liable. 3. The insurance company had the benefit of defence under Section 170 of the Motor Vehicles Act and I allowed the insurer to join issues on the aspect of negligence. The insurer contended that it was only the tractor owner, who was responsible for the accident and the driver of the insured was not negligent in his driving. The Tribunal held that both the vehicles were responsible for the FAO No.1000 of 2007 -3- accident in equal measure and apportioned the liability between the owner of the tractor and the insurer of the Ford Icon car as 50:50. The manner in which the accident narration has come about, I have no doubt in my mind that the liability cannot be attributed wholly to the driver of the tractor for accident had arisen by the Ford Icon car dashing from behind. It could not have happened if the driver of the Ford Icon car had exercised caution. It was in evidence that the tractor suddenly took a right turn without prior indication and the driver of the Ford Icon car, who was following closely the vehicle dashed against it. The car following the tractor ought to have kept a safe distance and even a sudden turn of the vehicle going in front could not have resulted in collision if the Ford Icon car driver had been more careful. If the driver of the tractor was negligent in taking a sudden turn without prior indication, the driver of the Ford Icon car was negligent in not keeping a safe distance. The apportionment of liability in equal measure is under the circumstances perfectly justified and I uphold the findings of the Tribunal on the above aspect. 4. Considering the issue of compensation, it was in evidence that at the time of accident, the claimant was 39 years of age and she was working in a security agency in U.K. She had not been immediately discharged from service but it was brought again on evidence that after two years, she had been discharged from service on 01.09.2003. She had been earning ₤ 11.246.20 per annum and after the accident when she lost her job, she received ₤ 330 under a National Health People and ₤ 330 from the Department of Disability. FAO No.1000 of 2007 -4- The Tribunal found, therefore, the accident had resulted in a reduction of her income by ₤ 3326.2 and applying the conversion value in August, 2001 as Rs.60/-, calculated the shortfall in her income as Rs.2,26,168/- per year or Rs.18,847/- per month. The amputation of her hand which resulted in loss of her job and made possible merely receipts of some compensation under Welfare Scheme of the U.K. has given in this case the exact amount of loss of income arising therefrom. The Tribunal approached the issue of compensation from the decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and others 2002 ACJ 1441 that dealt with the case of a choice of multiplier and a deviation from the manner in which the Schedule II provides for in special circumstances where the amount of multiplicand being a high amount, a lower multiplier could be appropriately applied. In this case, at the relevant time when the claim was made, she was aged 41 years and the Tribunal adopted a multiplier of 7. In cases where the value of the multiplicand is high, the choice of multiplier must be such that the amount, which if capitalized will yield as interest an amount which is equivalent to the yearly loss of income but provide for the fact that the principal remains intact and teh principal also is withdrawn gradually so that the amount is exhausted at the end of life term. In this case, we have already seen the year loss of income that was assessed was Rs.2,26,168/-. The Tribunal by adopting a multiplier of 7 had come by an amount of Rs.15,83,176/-. It could be noticed that if it was capitalized and put in a deposit in a stable economy that yields an FAO No.1000 of 2007 -5- interest of 7.5%, the monthly payment would have been Rs.12,661/- which if it is taken for a year Rs.1,51,934/-. There is a shortfall about Rs.6,000/- per month. Even if due provision is given for the availability of the principal, even then the the choice of multiplier is definitely low. The appropriate choice of multiplier, which would result in an yearly return of Rs.2,26,168/- providing for some portion of the principal amount also to be available to the claimant, the appropriate multiplier would have been 12. So reckoned, the compensation for loss due to the accident must be Rs.27,14,016/-. The Tribunal has awarded Rs.1,00,000/- for loss of right arm, mental and physical shock arising therefrom and for pain and suffering. The method assessment does not appear to be scientific in any way. The only available heads of compensation shall be medical expenses and the non-pecuniary damages like loss of amenities of life and special damages for the cosmetic value for a woman for disfigurement suffered by amputation of her hand. The amounts shall be reworked as follows:- Rs. 1. Loss of income : 27,14,016 2. Medical expenses : 43,000 3. Loss of amenities : 1,00,000 of life 4. Special damages : 50,000 Total : 29,07,016 5. The award passed by the Tribunal shall stand modified and the appeal shall allowed to the above extent rounded off the amount FAO No.1000 of 2007 -6- to Rs.29,07,000/-. 50% of the amount shall be borne by the insurer for the Ford Icon car and the remaining 50% shall be borne by the owner of the tractor. The appeal filed by the insurance company denying liability is dismissed and the appeal filed by the claimant shall stand partly allowed by enhancing the amount to the above extent. (K. KANNAN) JUDGE August 26, 2010 Pankaj*