FAO No.1061 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1061 of 1988 Date of decision 27 .1.2010. Dr.Renu Verma and others ...... Appellants. versus Vidya Sagar and others ...... Respondents. FAO No.1070 of 1988 Suresh Kumar Gupta and another ...... Appellants. versus Dr.Renu Verma and others ...... Respondents. Present : Mr. Mrigank Sharma, Advocate for the appellants. Mr. Vivek Singal, Advocate for Insurance Company. K.C.PURI. J. Vide this judgment, I intend to dispose of FAO No.1061 of 1988 preferred by the claimants for enhancement and FAO No.1070 of 1988 preferred by owner and driver for dismissing the claim petition FAO No.1061 of 1988 2 alleging that accident has taken place due to rash and negligent driving of Dr.Ramesh Verma and in the alternative fixing the liability of Insurance Company. Since both these appeals have arisen out of the same award and as such are being disposed of with the common judgment. Dr.Renu Bala widow, Shampy and Sherry both minor daughters of Dr.Ramesh Verma preferred claim petition on account of death of Ramesh Verma in a motor vehicular accident. Shorn off unnecessary facts, on 12.2.1986 at about 3.30p.m., Dr.Ramesh Verma aged 35 years was returning to his Clinic situated on Dabra Road at Hisar from Hansi side in his Fiat Car HYT-174 met with an accident with truck No.HRT-5858 driven by Ghanshyam-respondent No.1 rashly and negligently and came from opposite direction and hit the car driven by Dr.Ramesh Verma, who was driving the said vehicle at its correct side and at normal speed. Both the front wheels of the truck got detached and it came to a stop at a distance of 10 karms from the place of accident. Dr.Ramesh Verma succumbed to injuries at the spot. It is alleged that deceased was earning Rs.1,00,000/- per annum and the claimants are dependents and an amount of Rs.10,00,000/- has been claimed along with interest on account of death of Ramesh Verma. Respondent No.1 driver and respondent No.2 filed joint written statement alleging that accident had occurred due to the break-neck and uncontrolled speed at which the car was driven by deceased in a zig-zag manner. Respondent No.1 was driving the truck on the very extreme side left kacha portion of the road, applied brakes. The accident has taken place FAO No.1061 of 1988 3 due to negligent driving of the driver of the car and car was not road worthy and the driver was drug addict and was not holding a valid driving licence. The case under Section 304-A, IPC has been wrongly registered against Ghanshyam-respondent No.1. Insurance Company adopted the reply filed by respondent Nos.1 and 2 and has further pleaded that liability of Insurance Company is to the extent of Rs.1,50,000/- in view of Motor Vehicles (Amendment) Act, 47 of 1982 inserted in Section 95(2) of the Act on 1.10.1982. It was further pleaded that truck was not holding a valid route permit and fitness certificate and at the time of accident the truck was not being driven in the course of employment of the insurer. Following issues were framed :- 1. Whether Dr.Ramesh Verma died as a result of rash and negligent driving of truck HRT-5858 driven by respondent No.1 ? 2. Whether the petitioners are entitled to claim compensation in respect of the death of Dr.Ramesh Verma, If so, how much and against whom? 3. Whether Dr.Ramesh Verma deceased was the owner of Fiat Car No.HYT-174? 4. Whether Fiat Car No.HYT-174 was damaged as a result of rash and negligent driving of truck No.HRT-5858 driven by respondent No.1, If so to what extent ? 5. Whether the petition is time barred? 6. Whether the petitioners are the L.Rs. of the deceased? 7. Whether the petition is bad on account of non-joinder of insurance company of Fiat car HYT-174? 8. Whether the petition is not maintainable as brought ? 9. Whether respondent No.1 was holding a valid DL at the FAO No.1061 of 1988 4 time of accident ? 10.Whether the liability of the insurance company respondent N.3 was exonerated on the grounds taken in the written statement by it ? 11.Relief. While deciding issue No.1, it has been held that accident has taken place due to rash and negligent driving of truck No. HRT-5858 by respondent No.1. Issue Nos.2 to 4 are also decided in favour of the claimants and the claimants were held entitled to claim Rs.4,48,000/- on account of death of Dr.Ramesh Verma and Rs.20,000/- on account of damages to the car. However, respondent No.3 was held liable to pay an amount of Rs.1,50,000/- and the remaining due was ordered to be paid by respondents No.1 and 2. Issues No.5 to 7 were not pressed before the Tribunal and as such these were decided against the respondents. Feeling dis-satisfied with the above said Award, the claimants have preferred the present appeal for enhancement whereas owner and driver of the truck have preferred appeal for holding negligence of Dr.Ramesh Verma or in the alternative fixing the liability of Insurance Company. I have heard learned counsel for the parties and have gone through the records of the case. The main grievance ventilated by the claimants is that the Tribunal has assessed the income of deceased as Rs.6000/- per month and dependency has been calculated as Rs.4000/- per month. The yearly dependency has been calculated as Rs.48,000/- and the multiplier has been applied as 14 and in this manner an amount of Rs.6,72,000/- has been FAO No.1061 of 1988 5 assessed by the Tribunal, on account of death of Dr.Ramesh Verma, but has contended that cut of 1/3rd amount out of the said amount, as relied upon authority Amarjit Kaur and others vs. Vanguard Insurance Co.Ltd. and others 1969 ACJ 286, has been wrongly applied on account of the benefit of accerelation of the succession to the claimants. It is contended that the loss of dependency has been assessed in respect of income of deceased from the profession as a doctor and not his income from the property and the deduction can only be made in respect of income from the property. It is contended that the Tribunal has imposed cut of 1/3rd regarding expenses of the deceased on himself and has imposed further cut of 1/3rd in respect of acceleration of inheritance. The latter cut imposed by the Tribunal does not stand the test of legal scrutiny and prayer has been made for setting aside that part of the award. I have carefully considered the said submission and have gone through the records of the case. The arguments advanced by the counsel for the appellants- claimants carries weight and has to be accepted. The latter cut in respect of acceleration of inheritance cannot be allowed on the facts of the present case. The authority Amarjit Kaur's case (supra), of Delhi High Court in this regard is inapplicable to the facts of the present case. I am of the considered view that if the deceased has income from the property, which would otherwise arise to the legal heirs after the death of deceased, in that case, part of income should not be included in computing the income or at the most the managerial act of the deceased, contributing to earn that income, can be taken into account. But, in the present case, the Tribunal FAO No.1061 of 1988 6 has assessed the income regarding his professional works as M.S. doctor. So, the learned Tribunal has wrongly imposed the cut of Rs.2,24,000/- i.e. 1/3rd of the total assessed income of Rs.6,72,000/-. So, that part of that judgment does not sustain the test of legal scrutiny and the cut imposed by the Tribunal to the extent of 1/3rd share amounting to Rs.2,24,000/- stands set aside and it is held that claimants are entitled to claim Rs.6,72,000/- on account of death of Ramesh Verma in motor vehicular accident as assessed by the Tribunal. So far as the amount of Rs.20,000/- granted to the claimants in respect of damage to the car is concerned that aspect has not been argued by the counsel for the appellants. Otherwise also, the amount of Rs.20,000/- assessed in this respect is reasonable. So, that finding does not call for any interference. The counsel for the appellants has further contended that appellant-Dr.Renu Verma, is a lady having two daughters and as such, the liability be fastened on the Insurance Company to pay whole of the amount of Rs.6,72,000/-. The recovery rights should be given to the Insurance Company to get the same recovered from the owner of the truck. To support this contention, learned counsel for the appellants-claimants has relied upon Civil Appeal No.5681 of 2008 titled as United India Insurance Company Ltd. vs. A.N.Subhulakshmi & Ors. decided on 16.9.2008. However, that argument has been vehemently refuted by the learned counsel for the Insurance Company. It is contended that as per terms of the policy, the liability of the Insurance Company is to the extent of Rs.1,50,000/- and that amount has already been paid to the claimants. The Constitutional FAO No.1061 of 1988 7 Bench consisted of five judges of Hon'ble Apex Court in authority New India Assurance Company Ltd. Vs C.M.Jaya and others AIR 2002 Supreme and others 651 held that in case the accident has taken place prior to 1.7.1989 (prior to the amendment of Motor Vehicles Act), the liability of Insurance Company shall be limited to the extent of the term of the policy. I have considered the said aspect of the case. In view of the authoritative pronouncement by the Hon'Ble Apex Court of Five Judges Bench in New India Assurance Company Ltd. Vs C.M.Jaya and others' case (supra), the Insurance Company cannot be asked to indemnify the claimants more than the statutory liability or that mentioned in the term of the policy. United India Insurance Company Ltd. vs. A.N.Subhulakshmi & Ors' case (supra) is not helpful to the case of appellants as in that case the constitutional Bench in New India Assurance Company Ltd. Vs C.M.Jaya and others' case (supra), has been discussed and the order of the High Court directing to make the payment in excess of limited liability has been set aside. The amendment of 1.10.1982 raised the liability of Insurance Company from Rs.50,000/- to Rs.1,50,000/- and the Tribunal has held that Rs.1,50,000/- has to be paid by the Insurance Company. So, that contention raised by the counsel for the appellants cannot be accepted. Consequently, the appeal preferred by the claimants is partly accepted and it is held that claimants are entitled to claim an amount of Rs.6,72,000/- in respect of death of Dr.Ramesh Verma along with interest as granted by the Tribunal. They are further held entitled to claim FAO No.1061 of 1988 8 Rs.20,000/- on account of damage to the car along with interest as awarded by the Tribunal. Now rebutting to the appeal preferred by the owner is concerned that the factum of negligence has been duly discussed by the Tribunal by deciding issue No.1. On reprisal of the evidence that finding does not call for any interference. The principle of res ipsa loquitur applies on the facts of the present case. Both the front wheels of the truck got detached and the truck stopped at a distance of 10 karms from the place of accident. This fact itself proves the factum of negligence on the part of respondent No.1. FIR has been registered against respondent No.1. So, the finding on issue No.1 does not call for any interference and the same stands affirmed. The plea of owner and driver for fixing the liability of Insurance Company has been discussed in the earlier part of the judgment. The liability of the Insurance Company is to the extent of Rs.1,50,000/- and as such, no further interference regarding fixing the liability of Insurance Company arises. Consequently, the appeal preferred by the owner and driver is without any substance and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE January 27 , 2010 sv