FAO No.1015 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1015 of 2010 (O&M) Date of Decision: 5.3.2010 ICICI Lombard General Insurance Company Ltd. ..Appellant Vs. Smt.Parveen Bansal & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Ms.Vandanaa Malhotra, Advocate, for the appellant. --- Vinod K.Sharma, J, (Oral) CM No.5559-CII of 2010 This application under section 5 of the Limitation Act has been moved for condoning the delay of 20 days in filing the appeal. In view of the averments made in the application, civil misc. is allowed and the delay of 20 days in filing the appeal is condoned. FAO No.1015 of 2010 & CM No. 5560-CII of 2010 This appeal by the Insurance Company is directed against the award dated 1.10.2009 passed by the learned Motor Accident Claims Tribunal, Sangrur (for short the Tribunal). FAO No.1015 of 2010 2 On appreciation of evidence learned Tribunal recorded a finding that deceased Surinder Kumar died in motor vehicular accident involving Bus bearing No.HR-56-2960 driven by respondent No.4 (respondent No.2 before the learned Tribunal). It was further held that the accident had occurred due to rash and negligent driving of bus by respondent No.4. Issues No. 4 and 5 were framed on the pleadings of the appellant/Insurance Company, which read as under:- 4. Whether the respondent No.2 was not holding a valid driving licence at the time of accident if so its effect? OPR (3) 5. Whether respondent No.1 has committed the breach of any other condition of the Insurance policy? If so its effect? OPR (3) However, no evidence was led on issues No.4 and 5 and therefore the learned Tribunal was pleased to record the following finding on issues No.4 and 5:- “12. It would be proper to take up these issues in the first instance, RW 1 Chandi Ram has produced the driving licence Ex.R-1. The onus to prove that the said licence is forged or fabricated lies upon the insurance company. However, the insurance company i.e. respondent No.3 could not produce any evidence to prove their allegations in this regard. There is no evidence regarding breach of any other condition of the police FAO No.1015 of 2010 3 by the respondent no.1. Since the bus in question was insured with the respondent No.3, therefore, all the respondents are jointly and severally liable to pay the amount of compensation. Hence, these issues are decided against the respondent No.3 and in favour of the claimants and other respondents.” On the question of quantum of compensation, it was proved on record that deceased was drawing a salary of Rs.38,295/- (Rupees thirty eight thousand two hundred and ninety five only) which was inclusive of office allowance of Rs.750/- (Rupees seven hundred and fifty only) and other allowances of Rs.692/- (Rupees six hundred and ninety two only). Deceased was paying income tax of Rs.8740/- (Rupees eight thousand seven hundred and forty only) per month. By deducting the income tax referred to above monthly income for the purpose of dependency was assessed at Rs.28,023/- (Rupees twenty eight thousand and twenty three only). Out of the said amount 1/3rd was deducted towards personal expenses and accordingly dependency was assessed at Rs.18,623/- (Rupees eighteen thousand six hundred and twenty three only). The deceased was 56 years of age at the time of his death and therefore, the learned Tribunal applied multiplier of 9 to assess the compensation. Learned counsel for the appellant by claiming that their application under section 170 of the Motor Vehicles Act to contest the claim on merit was allowed, therefore, questioned the quantum of compensation. Learned counsel for the appellant by placing reliance on the judgment of this court in the case of Harbhajan Kaur Vs. State of FAO No.1015 of 2010 4 Haryana 2008 (4) RCR (Civil) 523 contended that multiplier of 11 in the said case was applied in case of an employee who died at the age of 50 keeping in view the length of remaining service of the deceased. The contention of the learned counsel for the appellant was that multiplier of 4 should have been applied. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Managing Director, TNSTC Ltd. Vs. K.L.Bindu & Ors. (2006-1) PLR 224 to contend that in order to ascertain the multiplier, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. However, this court finds no relevance of this judgment to the facts of the present case. Hon'ble Supreme Court in the case of Managing Director, TNSTC Ltd.Vs. K.L.Bindu & Ors. (supra), was pleased to hold that measure of damage is the pecuniary loss suffered and likely to be suffered by each dependent, therefore, “except where there is express statutory direction to the contrary, the damages to be awarded to a dependent of a deceased person under the Fatal Accidents Act must take into account any pecuniary benefit accruing to that dependent in consequence of the death of the deceased. Learned Tribunal has assessed the dependency by following well settled law. Learned Tribunal placed reliance on the judgment of Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation, 2009 (3) Punjab Law Reporter 22, to hold that multiplier FAO No.1015 of 2010 5 of 9 was required to be applied to the case. Learned Tribunal also took into consideration the qualification and the post held to conclude that even after the retirement the deceased was to work and was not expected to sit idle. No fault, therefore, can be found on the question of compensation also. Consequently, finding no merit in this appeal it is ordered to be dismissed in limine. (Vinod K.Sharma) 5.03.2010 Judge rp