F.A.O.NO. 1646 OF 1998 and 1 F.A.O.NO. 2285 OF 1998 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1646 OF 1998 Date of decision:21st July, 2010 United India Insurance Co. Ltd. .......Appellant Versus Kanwal Nain Sachdeva and others ........Respondents F.A.O.NO. 2285 OF 1998 Kanwal Nain Sachdeva .......Appellant Versus Parma Nand and others .......Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vishal Jain, Advocate for Mr. Sumar Jain, Advocate, for Insurance Company Mr. V.Ramswarup, Advocate. Mr. Manoj Bajaj, Advocate. Mr. Sandeep Vermani, Advocate. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. Both the appeals arise out of the same cause of action and dispose of by common order. 2. The appeal filed by the Insurance Company is on the ground that the vehicle was carrying more number of passengers F.A.O.NO. 1646 OF 1998 and 2 F.A.O.NO. 2285 OF 1998 than what was permitted to be done and mentioned in the policy of insurance. The permitted sitting capacity was 22 to 45 passengers. Most of the passengers were school children. The claim was for death of one of the children. The Insurance Company pleaded violation of terms of policy. It also took up the plea that the driver did not have a valid driving licence. It sought to rely on report of the surveyor that the licence produced by the driver was fake. 3. The Tribunal while allowing the claim rejected the contention with reference to the plea of fake licence by reasoning that the insurer had not produced either the register or make available any person connected with the document to give evidence in Court. The Court found that it could not possible to rely on report of the surveyor. I do not find any error in reasoning with reference to the plea of exclusion of liability in the manner contended by the insurer. The reasoning of the Tribunal is appropriate. 4. As regards the contention that there were more number of passengers in the bus that what were permitted, it must be shown that the accident itself cause on account of over loading of passengers. The mere fact that there were more passengers then what were permitted cannot give a justification for an insurer to claim exclusion of liability. This has been held by the decision of the Hon'ble Supreme Court in B.V.Nagarajan v. Oriental Insurance Co. Ltd(1996) 4 SCC 647. There is no such evidence that accident arose only because of the F.A.O.NO. 1646 OF 1998 and 3 F.A.O.NO. 2285 OF 1998 overloading. The liability cast on the Insurance Company by the Tribunal under the circumstances was justified and the appeal by the Insurance Company is dismissed. 5. There is also a cross appeal i.e.FAO NO. 2285 of 1998 for enhancement of compensation for a passenger in the bus who was a teacher. She was B.A., B.ED graduate who was withdrawing a consolidated salary Rs. 1750/-. Document was also produced through the school as evidence of her earning. There was also evidence that she was also providing tuitions and Rs. 4,000/- p.m. was earning from that. The Tribunal took the contribution to the family at Rs. 750/- and adopted a multiplier of 6 and granted a compensation of Rs.86,400/-. 6. The learned counsel for the appellants states that the compensation awarded is grossly low in the presence of evidence relating to tuition. The Court must have taken the income to be Rs.4,000/- and having regard to the fact that she was aged only 21 years, multiplier of 18 must have been adopted. 7. I am of the view that in a case where the claimants with a prospect of marriage of her daughter and the fall in the contribution towards the parents, the multiplier cannot be the same as it would be for a person who had full time dependency. I still think that even if we take the income of the deceased as Rs.15,000/- per year, the formula adopted under Schedule II for Section 163-A, if it is more beneficial than what had been determined under Section 166, the Court will not be without power to entertain such a claim. I would adopt the formula as F.A.O.NO. 1646 OF 1998 and 4 F.A.O.NO. 2285 OF 1998 prescribed under Schedule II. Accord to the claimants the compensation payable which represented shall be the amount that will be payable for a person whose annual income was Rs. 15,000/- and providing for deduction 1/3rd. The compensation that will become payable will be in the range of Rs. 1,25,000/- and providing for the conventional heads of claim for loss of love and affection for the death of the daughter and loss to estate and funeral expenses round of figure for Rs.1,40,000/-. The amount which has already been granted is Rs. 86,400/-. There will be an additional amount of Rs. 53,600/- shall become payable by insurer which shall carry interest @7.5% form the date of the award till the date of the payment. [K.KANNAN] JUDGE 21st July, 2010 Shivani Kaushik