FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. F.A.O.NO. 708 OF 2006 Date of decision:13th October, 2010 The Oriental Insurance Company Limited, Regional Office, SCO 109- 110-111 Sector 17-D, Chandigarh through Shri S.P.Sharma, Deputy Manager. .......Appellant Versus Smt. Saroj widow of Shri Raj Pal son of Shri Sukar Singh and others ........Respondents 2. F.A.O.No. 709 of 2006 The Oriental Insurance Company Limited, Regional Office, SCO 109- 110-111 Sector 17-D, Chandigarh through Shri S.P.Sharma, Deputy Manager. .......Appellant Versus Smt. Phoolwati wife of Shri Ratan Singh and others ........Respondents 3. F.A.O.No. 710 of 2006 The Oriental Insurance Company Limited, Regional Office, SCO 109- 110-111 Sector 17-D, Chandigarh through Shri S.P.Sharma, Deputy Manager. .......Appellant Versus Shiv Kumar son of Shri Kurari Ram and others ........Respondents 4. F.A.O.No. 2301 of 2006 Smt. Phoolwati wife of Shri Ratan Singh and another .......Appellants Versus Jagdish Singh and others ........Respondents 5. F.A.O.No. 2302 of 2006 Shiv Kumar and another .......Appellants FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -2- Versus Jagdish Singh and others ........Respondents 6. F.A.O.No. 2303 of 2006 Smt. Saroj wd/o Sh. Raj Pal son of Sh. Sukar Singh and others .......Appellants Versus Jagdish Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate, for the Oriental Insurance Company. Mr. Inderjeet Sharma, Advocate, for the National Insurance Co. Ltd. Mr. J.S.Cooner, Advocate, for the claimants. Mr. Anil Shukla, Advocate, for the driver of tractor-trolley. 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. Out of all the above appeals three appeals i.e. FAO Nos. 708 to 710 of 2006 are at the instance of the Insurance Company for the tractor trolley in which the deceased persons were travelling. The accident took place when there was collision between the tractor trolley and the truck. The deceased persons were travelling in the FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -3- tractor trolley, while they had taken lift to go to their respective homes. The Tribunal found both the vehicles to be responsible for the accident, apportioned the liability as 50:50 against the owners and the respective insurers. The Insurance Company of the tractor trolley in which the deceased persons were travelling have filed the appeals i.e. FAO Nos. 708 to 710 of 2006 contending that they were gratuitous passengers in a goods carriage and hence there was no policy of insurance to cover the risk and hence the insurance company is not liable. The Tribunal accepted the contention to provide for a right for recovery against the insured. 2. The learned counsel would contend that when there was no policy of insurance at all and when the deceased persons could not treat themselves as third parties then the insurance company must have been totally relieved of any liability as laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. vs. Asha Rani and others (2003) 2 SCC 223. I accept the contention and I find that the recovery rights granted to the insurer were not in accordance with law and the insurance company must have been totally exonerated. However, it appears during the pendency of the appeal, the amounts awarded by the Tribunal have been already recovered and therefore, I would direct that the insurers right to obtain a recovery will be only against the insured/owner of the tractor trolley involved in the accident and not against the claimants. It will however, have a bearing FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -4- to consider the issue relating to the enhancement of the respective claims made by the representatives of the deceased. 3. Rest of the three appeals i.e. FAO Nos. 2301 to 2303 of 2006 address the claims for compensation for death of the passengers in the tractor trolley. All the persons were worker in Brick Kiln and evidence was led to the effect that the male members were receiving income to the tune of Rs. 3,500/- but the Tribunal took the income to be Rs. 2,400/- for two male members and Rs. 2,100/- for one of the female members that died in the accident. The complaint of the learned counsel appearing for the claimants in FAO NO. 2301 of 2006 is that the deceased was aged 24 years and the claimants were his parents aged 52 and 55 years. The Tribunal took a deduction of 1/3rd and adopted a multiplier of 9. The choice of a multiplier as dependent on the age of the claimant when the claimant was a parent or person more aged than the deceased had been the norm for determining compensation in some of the decisions of the Hon'ble Supreme Court at the relevant time when the decision was given. However, in a recent judgment in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121 the Hon'ble Supreme Court has given a uniform formula for determining compensation at a slightly different scale that will provide for a 50% deduction in a case of claimants for bachelors. I would adopt a compensation scheme that could be most beneficial for the claimants and in my view having FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -5- regard to the fact that the deceased was in the low income group, the formula prescribed under Schedule II would be most appropriate. If the income was Rs. 2,400/- I would adopt a deduction of 1/3rd and take the contribution to the family at Rs. 1,600/-. I would adopt a multiplier of 17 and find the amount of compensation at Rs. 3,26,400/-. I would add additional amount of Rs. 4,500/- towards loss of estate and funeral expenses and determine the compensation at Rs. 3,30,900/-. The amount determined in excess over what has already been awarded by the Tribunal will attract interest at 6% from the date of the petition till the date of payment. 4. As regards the claim in FAO No. 2302 of 2006, the deceased was a lady who was said to be 48 years of age. The Tribunal took the age to be 55 to 60 years, the claimants were elder sons. Her income was taken to be Rs. 2,100/-, 1/3rd deduction was taken and the Tribunal took the multiplier of 5. The modification that I would apply to it by adopting the formula in Schedule II would be to take the deduction of 1/3rd and Rs. 1,400/- as the contribution towards the family and adopt a multiplier of 8 to arrive at the compensation of Rs. 1,34,400/-. I would add another Rs. 4,500/- towards loss to estate and funeral expenses and in all the amount that would become payable is Rs. 1,38,900/-. The Tribunal awarded Rs. 84,000/- and the amount determined in excess i.e. Rs. 54,900/- over what has already been awarded by the Tribunal will attract interest at 6% from the date of the FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -6- petition till the date of payment. 5. As regards the claim in FAO No. 2303 of 2006, the deceased was a person who was said to be 24 years of age at the time of the accident. The claimants were widow, five minor children and an aged father. It could not have been that he was 24 years old with five children, the eldest being 12 years and I would take the age as determined by the Tribunal and if 1/3rd cut were to be taken the contribution to the family would have been Rs. 1,600/- and if I apply the multiplier of 16 as provided under Schedule II, the compensation payable will be Rs. 3,07,200/-. I will add an additional amount of Rs. 5,000/- towards loss of consortium for the wife and Rs. 2,500/- for each of the minor children as loss of love and affection. I will also provide for an additional amount of Rs. 4,500/- towards loss to estate and funeral expenses. In all the amount that would become payable is Rs. 3,29,200/-. Out of the compensation awarded, the father will be entitled to Rs. 50,000/- with interest and the rest of the amount will be shared equally between widow and the five minor children. 6. Having regard to the fact that the claimants in FAO No. 2303 of 2006 all are young and I have adopted a multiplier of 16. I will provide for 50% of the amount as determined for the widow to be withdrawn and the remaining shall be kept in fixed deposit for a period of five years which shall be split in five equal moieties and first moiety should be invested for one year and the second moiety for two years and so on till the fifth moiety shall be invested for five years. FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -7- The amounts with interest accrued on the deposits for a year and so on will be paid to the widow on the respective dates of their maturity. As regards the minor children, all the amounts should be kept in deposits till they attain age of their respective majority and the interest accumulations shall be paid quarterly to the widow as a guardian of the minor children for their maintenance. On attaining the respective dates of majority the children will be entitled to the 50% of the amount and the remaining amount shall be deposited for a period of 5 years, each batch of deposits in similar fashion with amounts split into equal shares. The amounts shall be paid to the children on the respective dates of the maturity of deposits. 7. Having regard to the finding made in FAO Nos. 708 to 710 of 2006 that the Insurance Company will not be liable for satisfying the claims of 50% that bears an apportionment of liability for the negligence of the driver of the tractor trolley, the right of the claimants to recover the enhanced portion of the amounts shall be only against the owner/insured of the tractor trolley and not against the insurer. In the manner of apportionment of liability and the negligence attributed to both the vehicles, the finding of the Tribunal is confirmed and consequently, in every case where there has been enhancement of compensation, 50% liability will be borne by the respective owners of the vehicle and in so far as the insurer of the truck it will be bound to indemnify to the extent of 50% that is attributed to the truck. FAO Nos. 708 to 710 of 2006 and FAO Nos. 2301 to 2303 of 2006 -8- 8. All the appeals are disposed of to the above extent. The amounts deposited by the Insurance Company at the time of preferring the appeal shall be permitted to be withdrawn. [K.KANNAN] JUDGE 13th October, 2010 Shivani Kaushik