FAO No.3233 of 1996 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.3233 of 1996 DATE OF DECISION: April 4, 2011 THE NEW INDIA ASSURANCE COMPANY LTD. ...APPELLANT VERSUS GURSHARAN KAUR & OTHERS ...RESPONDENTS PRESENT: MR. L.M. SURI, SR. ADVOCATE WITH MR.NEERAJ KHANNA, ADVOCATE FOR THE APPELLANT. MR. RISHABH JAIN, ADVOCATE AND MR. ARUN JINDAL, ADVOCATE FOR MR. ARIHANT JAIN, ADVOCATE FOR RESPONDENTS NO.1 TO 5. NONE FOR RESPONDENTS NO.6 & 9. MR. H.S. SIROHI, ADVOCATE FOR RESPONDENTS NO.7 & 8 2. FAO No.1372 of 1997 GURSHARAN KAUR ETC. ...APPELLANTS VERSUS CHARAN SINGH ETC. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. RISHABH JAIN, ADVOCATE AND MR. ARUN JINDAL, ADVOCATE FOR MR. ARIHANT JAIN, ADVOCATE FOR THE APPELLANTS. NONE FOR RESPONDENTS NO.1, 4, 5 & 6. MR. H.S. SIROHI, ADVOCATE FOR RESPONDENTS NO.2 & 3. FAO No.3233 of 1996 -2- MR. L.M. SURI, SR. ADVOCATE WITH MR.NEERAJ KHANNA, ADVOCATE FOR RESPONDENT NO.6. K.KANNAN, J.(ORAL) 1. Both the appeals are connected. FAO No.3233 of 1996 is at the instance of the insurance company and FAO No.1372 of 1997 is by the claimants seeking for enhancement of claim. 2. The grievance expressed on behalf of the insurance company is that in a case where the insurer was contending that driving licence was not genuine and when it was seeking for permission of the Court to examine the Licencing Authority on commission, the Court upheld the objection of the claimants that there was no scope for examining any witness on commission. 3. Counsel appearing on behalf of the respondents-owner contends that when a prayer for appointment of Commissioner was made for securing evidence from the Licencing Authority and when it was dismissed by the Tribunal, the insurance company did not challenge the same by any revision and the correctness of the decision cannot be challenged now before this Court in appeal. This contention is not tenable, for the powers of the appellate Court extends also to examine the correctness of any interim order and the fact that a party affected by the interim order did not challenge the same cannot take away the powers of the Court to examine the correctness of the interim orders. The argument on the contrary made by the counsel for the respondent-owners is untenable and I reject the same. 4. A defence relating to the validity of the insurance or driving particulars are protected under Section 149 of the Motor Vehicles Act as FAO No.3233 of 1996 -3- permissible defences and if that was denied, the insurance company was entitled to urge that appropriate opportunity must be given to establish its defence. I will accord to the insurer such entitlement and will afford to the insurance company the opportunity to prove its defence. However, even if the licence had not been established to be genuine, the liability of the insurance company to make the payment is surely rooted in law by the decision of the Hon'ble Supreme Court in New India Assurance Company vs. Kamla, (2001) 4 SCC 342. Learned counsel for the claimants argues that till date no amount has been paid and the award had been stayed by this Court. The stay shall stand vacated forthwith and the claimants shall be entitled to recover the amount from the insurance company. The actual determination of the amount payable will be the subject of discussion in the appeal in FAO No.1372 of 1997. 5. On the issue of quantum, the deceased was said to be aged 39 years and owner of 10 acres and 1 kanal of land. The evidence of the widow was that her husband was earning about `1,50,000/- from the land and he was earning about `20,000/- through his business of selling milk. The Tribunal rejected the contention that the entire income that was said to have been earned could have been the loss occasioning to the family, by taking note of the fact that the land was still available and what was appropriate to be considered was the loss of managerial skills for having cultivating the land or granting if on lease or employing some other person to cultivate the land and making income. The value of the services of the deceased was taken at `3000/- per month for a death which had taken place in the year 1988. I would take the assessment for the relevant year to be appropriate and I will not make modification with reference to the same. FAO No.3233 of 1996 -4- 6. The deceased was supporting a large family of widow, a minor son, two minor daughters and an aged mother. While assessing the contribution to the family, it adopted a formula brought through the decision of the Hon'ble Supreme Court in UPSRTC & Others vs. Tirlok Chandra & Others, reported as 1996 ACJ 670 and held that the family comprised of 9 units, computing unit for adult to be 2 and for the minor child to be 1 and apportioned deduction of 2 units to the deceased and took the balance at `28,000/-. It made a further deduction of `7000/- for out of pocket expenses for the deceased. This deduction was in my view improper, for a deduction of `8000/- made already for 2 units attributable to the deceased ought to have been taken as covering for all types of expenses as well. I will take, therefore, the multiplicand at `28,000/- and adopt a multiplier of 15 to arrive at the extent of dependency. The Tribunal had provided for `7000/- as going towards the conventional heads of claim. I will increase it marginally to take the loss of consortium at `5000/- for the wife at `2500/- for every minor child. The claim of compensation is tabulated as below:- Fatal Accidents Age: 39 Occupation Wife, 3 minor children and mother Claimants Heads of Claim Tribunal High Court Sr.No. Amount ` Amount ` 1. Annual Income 3000 2. Add % of increase 30%/50%/Nil 3. Deduction (1/2,1/3, 1/4, 1/5) 1/3 4. Multiplicand 28,000 5. Multiplier 13 15 6. Loss of Dependence 4,20,000 7. Medical Expenses FAO No.3233 of 1996 -5- Fatal Accidents 8. Loss of Consortium + loss of love and affection 7000 12,500 9. Loss to Estate 10. Funeral Expenses 2500 Total 4,63,000/- 7. The amount in excess over what has already been awarded by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. The enhanced amount of compensation shall be distributed equally amongst the widow and children only. 8. The claimants shall be at liberty to enforce the award fully against the insurer. The question whether the insurance company will have a right of recovery will depend on the validity or otherwise of the driving licence and on proof of any violation of terms of policy in accordance with law, the insurance company's right will stand determined. 9. FAO No.3233 of 1996 is allowed to the extent of setting aside the finding relating to the validity of the driving licence and shall stand remitted to the Tribunal at Sangrur to examine the validity of driving licence and the parties shall be at liberty to adduce appropriate evidence as regards the same and adjudication shall stay confined only to the validity of the driving licence. The witness from the Licencing Authority could either be summoned or at the discretion of the Tribunal examined through appointment of Commissioner for gathering the evidence. Needless to say that the owner and driver shall have adequate opportunity to cross-examine any authority who speaks on the basis of record. 10. The appeal by the claimants in FAO No.1372 of 1997 is allowed and the award of the Tribunal shall stand modified as above. FAO No.3233 of 1996 -6- 11. For appearance of the parties before the Tribunal at Sangrur on 29.4.2011. 12. It is clarified that remand to the Tribunal is only for settling an inter-se dispute between the insurer and the insured and driver, and will have no bearing to the right of enforcement of the award by the claimants against the insurer. It is not even necessary for the claimants to participate in the enquiry before the Tribunal. April 4, 2011 (K.KANNAN) Gulati JUDGE