FAO No.380of 1996 and FAO No.1164 of 1996 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Date of decision:26.07.2010 1. FAO No.380 of 1996 The New India Assurance Company Limited ...Appellant Versus Asha Rani and others 2. FAO No.1164 of 1996 Asha Rani and others ...Appellants Versus Ram Singh and others ……..Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Aftab Singh, Advocate for Mr. Ashwani Talwar, Advocate for the appellant. Mr. Gurcharan Dass, Advocate for the respondents. ..... K. Kannan, J. (Oral) 1. Both appeals are filed by the insurer and the claimants. The appeal No.380 of 1996 is in challenge to liability cast on the insurer on the ground that the driver did not have a valid driving licence. The Tribunal had found that the surveyor had secured a report from the DTO, Guwahati that the licence had not been issued by them. No further evidence was given and the Tribunal took that to be sufficient. In my view, it will not be suffice to hold that the licence was not true. The burden of proof that the owner had committed breach could be discharged only, if appropriate evidence is let in with reference to the details contained in the report. That could be done either by summoning the register and examining a person with FAO No.380of 1996 and FAO No.1164 of 1996 2 reference to recitals contained therein or by appointing a Special Commissioner to personally verify the entries in the register with authority to correct statements at the spot in the presence of the driver and the owner or their counsel or after issuing notices to them. The duty cast on the insurer to prove that there had been violation of terms of policy has not been discharged. The liability of the insurer cannot therefore be escaped. 2. The appeal bearing FAO No.1164 of 1996 is as regards, quantum in a case where the claimants were widow and three minor children and the father. The Tribunal took the annual income to be Rs.30,000/- made the deduction of Rs.10,000/- for personal consumption and adopted a multiplier of 15. Learned counsel for the appellants states that for a large family the deduction for personal expenses ought not to have been 1/4th . I accept contention as in conformity with Judgment of Hon’ble Supreme Court in the case Sarla Verma VS. DTC 2009 (6) SCC 121 which held that a deduction ought to have been 25%. Adopting the same multiplier of what was taken by the Tribunal, the amount would have been Rs.3,35,500/-. The Tribunal has not provided for even the conventional heads of claims, I will provide Rs.10,000/- for loss of love and affection for the wife and Rs.5,000/- each for children. I shall make a further provision for Rs.5,000/- for funeral expenses and loss to estate. Therefore, another Rs.30,000/- will have to be added, which shall be Rs.3,65,500/-. This additional amount of Rs.67,500/- shall carry interest at the rate of 7.5% p.a. from the date of the award of the Tribunal till the date of payment. The increase shall be awarded in the same proportion at which the Tribunal has already granted the award and the amount shall be retained in the fixed deposit in case of minority of the children. If they have already reached the age of majority, the amount shall be permitted to be withdrawn. The FAO No.380of 1996 and FAO No.1164 of 1996 3 appellants also challenge the denial of damages for car that had been damaged by the collision between the car in which the deceased was traveling with the insured’s truck. The insurer had given a report and after providing for salvage, extent of damage was assessed of Rs.49125/-. Since the claimant against the insurer is in the capacity as third party, the liability stands restricted only to Rs.6,000/- with interest and the balance of Rs.43,126/- shall be recoverable against the insured only. 3. The appeal filed by the claimants are allowed in the above extent. (K.KANNAN) JUDGE 26th July, 2010 sharmila