F.A.O.NO. 3126 OF 2008 and F.A.O.No. 749 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3126 OF 2008 Date of decision:7th October, 2010 The New India Assurance Company Limited, SCO No. 36-37, Sector 17-A, Chandigarh through its Manager. .......Appellant Versus Baljit Kaur and others ........Respondents F.A.O.No. 749 of 2010 Baljit Kaur and others .......Appellants Versus Harpreet Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. V.Ramswarup, Advocate, for the Insurance Company. Mr. Jagjit Singh Lalli, Advocate, for the claimants. 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. The appeal is by the Insurance Company challenging the issue of negligence and quantum of compensation, the Insurance F.A.O.NO. 3126 OF 2008 and F.A.O.No. 749 of 2010 2 Company having had a benefit of Section 170 of the Motor Vehicles Act(hereinafter referred to as the 'Act'). The accident was said to have taken place when the deceased who was driving a motor cycle collided with Tavera Car which was insured with the appellant. The accident was narrated by wife of the deceased who was said to be seated at the front seat along with the husband. Another passenger in the car was also examined to speak about the negligent driving of the insured's vehicle as having caused the accident. The driver of the insured's vehicle was not examined. It is not very clear as to whether respondent Nos. 1 and 2 had remained ex parte and why the driver was not prepared to support the case of the insurer. Therefore, no doubt the insurer had been granted full liberty to defend the case on all grounds. Such a right, which is obtained at the trial, does not dispense with having to let in contra evidence to the evidence submitted by the claimants. 2. The learned counsel argues with force that along with the deceased two persons were sitting at the front of Maruti 800 which contained bucket seats and it would not have been possible for three persons to sit comfortably, and is ought to have affected the driving ability of the driver of the car. It therefore, contend that there had been contributory negligence on the part of the deceased who put himself in a vulnerable position to drive in a cramped seating arrangements, which alone would have contributed to the accident. I F.A.O.NO. 3126 OF 2008 and F.A.O.No. 749 of 2010 3 would take all these contentions to be issues of conjectures only. While the sitting capacity for vehicle on the front seat of a maruti car could have only two, if three passengers were travelling, it all depends on issue of fact whether by the constitution of the bodies they were sitting comfortably or there was cramping of space. It cannot be matter if inference only that three persons travelled in the front seat, driver could not have driven the vehicle properly. The Tribunal was justified in finding of negligence on the part of the insured's vehicles driver when it had no contra evidence at all to the evidence let in by the claimants. I therefore, confirm the finding of negligence on the part of the insured's vehicle. 3. On the issue of quantum there is a cross appeal for enhancement at the instance of the claimants. The deceased was a government employee, drawing Rs. 17,000/- as his monthly income. He was aged 46 years and the Tribunal took the annual contribution to the family at Rs. 1,35,600/- and adopted a multiplier of 13 to arrive at a compensation of Rs. 17,62,800/-. The counsel pleads for application of the principle enunciated in the decision of the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 that allows for taking into account an increase in scale of pay at 30%, if the deceased was in the range of 40 to 50. If 30% addition were to be made for Rs. 17,000/- monthly income and tax were to be taken at 30% in excess of Rs. 1,50,000/- then the tax F.A.O.NO. 3126 OF 2008 and F.A.O.No. 749 of 2010 4 deductible will be Rs. 30,000/- and annual income would be seem to be Rs. 2,35,200/-. Apart from the first claimant as a wife there is only one minor son claimant no. 2 and claimant nos. 3 and 4 were major sons. I take therefore, the widow and the minor son to be dependents. I would provide for 1/3rd deduction towards personal expenses and the take the annual extent of dependency to be Rs. 1,076,800/-. If I adopt the multiplier, the amount of compensation payable will be Rs. 22,98,400/-. I would add Rs. 5,000/- for loss of consortium to the wife and provide for another Rs. 10,000/- for loss of estate and funeral expenses. The amount payable will be Rs. 23,13,400/-. This amount will be shared between all the claimants equally. The amount which is now awarded over the amount already awarded by the Tribunal, shall attract interest at 6% from the date of the petition till the date of the payment. 4. The accident took place in the year 2007 and having regard to the fact, I have adopted a multiplier of 13. The amount which is ordered in excess shall be retained in fixed deposit for a period of five years and it shall be released only after the maturity of the deposit. I am informed that the amount has already been withdrawn by the claimants and therefore, no part of the additional amount now awarded shall be permitted to be withdrawn till the maturity of the deposits. The appeal by the Insurance Company is dismissed and the cross objection filed by the claimants for F.A.O.NO. 3126 OF 2008 and F.A.O.No. 749 of 2010 5 enhancement is allowed on the above terms. [K.KANNAN] JUDGE 7th October, 2010 Shivani Kaushik