IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.584 of 1993 (O&M) Date of decision:03.06.2011 Smt. Anita Devi ...Appellant versus Shri Pritam Singh and others ....Respondents & FAO Nos.585 to 588 of 1993 (O&M) CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ashit Malik, Advocate, for the appellants. None for respondents 1 and 2. Mr. Ravinder Arora, Advocate, for respondent No.3. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The appeal is for enhancement of claim for compensation in a case of a collision between a truck and a maruti car. The claimants are all the passengers and driver of the maruti car. The Tribunal, while assessing the compensation, found that the accident was the result of a composite negligence of the drivers of both the vehicles but in the manner of apportionment, the Tribunal assessed 80% liability on the truck and 20% on the driver of the maruti car. After assessing compensation for passengers, the Tribunal made a partial abatement of FAO No.584 of 1993 (O&M) - 2 - 20% on the ground that the driver of the maruti car himself had contributed to the accident. While an abatement for a driver of the maruti car, who appeared as a claimant, was possible, there could have been no abatement for the passengers, since it was only a case of composite negligence and it is perfectly tenable in law for the claimants to pursue the respective claims without impleading even one of the vehicles which were responsible for the accident. This point has been dealt with by this Court in The Oriental Insurance Company Limited Versus Meena Kumari and other in FAO No.4246 of 2006, decided on 24.08.2010. The claimants shall be entitled to the entire amount as determined, except for the driver of maruti car which is the subject matter in FAO No.585 1993 where an abatement shall result by the fact that the driver as a claimant had himself contributed to the accident. The cases are, therefore, dealt with on the issue of quantum which is payable to the claimants and the amounts determined in each one of the cases shall become payable to the claimants by the insurer of the truck. The insurer, however, shall have a right of recovery upto 20% from the owner, driver and the insurer of the maruti car in independent proceedings. The cause of action will be the date when the order is finally determined in these proceedings or by any other higher forum. 2. In FAO No.584 of 1993, the claimant had suffered simple injuries and the Tribunal had assessed Rs.7,000/- as compensation. I do not want to subject this for any reappraisal. The same is retained but the entire amount is payable with interest by the insurer of the truck for the reasons referred to above. The award stands modified to that extent only. FAO No.584 of 1993 (O&M) - 3 - 3. In FAO No.585 of 1993, the claim was at the instance of the driver of the maruti car. The finding regarding the negligence to the extent of 20% of the driver of the maruti car is maintained and consequently, the amount determined will suffer an abatement to the tune of 20%. That is how the Tribunal has already assessed and, therefore, the award is maintained and the appeal is dismissed. 4. In FAO No.586 of 1993, the claim was at the instance of the representatives of the deceased, who was 52 years of age and was said to be running an electrical shop. The claimants were widow, two minor sons and a daughter, who had been married. Against the claim that the deceased was earning Rs.3,000/- per month, the Tribunal had assessed the income at Rs.2,000/- per month. A person, who had turned 50 and who had the felicity of performing a marriage of his daughter as well, could have easily earned Rs.3,000/-. He could not have been after all a new entrant to the business by the time when he had crossed 50 years of age. If an assertion is made by the wife that he earned Rs.3,000/- and he had also to support a family consisting of 4 persons apart from himself, the Tribunal ought to have accepted it. He had wife and two minor children and since the daughter was already married off, I will provide for 1/3rd deduction and take the contribution to the family at Rs.2,000/-, apply a multiplier of 11, the loss of dependency will be Rs.2,64,000/-. I will add Rs.5,000/- for loss of consortium to the wife and another Rs.5,000/- for loss of love and affection for the two children. I will make a further addition of Rs.6,000/- towards loss to estate and funeral expenses. The total compensation as payable would come to FAO No.584 of 1993 (O&M) - 4 - Rs.2,80,000/-. The amount in excess over what has been already determined by the Tribunal shall attract interest at 6% from the date of petition till date of payment and the same shall be distributed in the same manner as determined by the Tribunal. The award stands modified and the appeal is allowed making the insurer of the truck liable and providing to the insurer a right of recovery of 20% in independent proceedings as directed in other cases. 5. FAO No.587 of 1993 is for enhancement of claim for compensation assessed at Rs.76,000/-. The accident resulted in mild explosion where the passengers had burn injuries also. The petitioner had burn injuries in the neck and after its healing, the evidence was that there was a formation of keloid at the site of the injury. She was in the hospital for 20 days. She claimed that she has spent about Rs.50,000/- for her treatment. The Tribunal, however, held that she was taking treatment in a Government hospital and no bills produced before Court, provided for Rs.10,000/- as towards medical expenses. It made a further provision for Rs.6,000/- for attendant charges. The Tribunal had awarded Rs.50,000/- towards compensation for pain and suffering as well as for loss of future enjoyment. The Tribunal had also provided for Rs.10,000/- for diet. All the heads of claim have been properly addressed and I find no scope for enhancement. However, as in other cases, the claimant shall be entitled to enforce any portion of the award which is attributed to the driver's negligence against the truck's insurer and with liberty to the insurer of the truck to recover 20% by way of contribution from the owner, driver and the insurer of the maruti car. FAO No.584 of 1993 (O&M) - 5 - 6. FAO No.588 of 1993 is for death of a child, aged 4 months. The Tribunal awarded Rs.25,000/- as compensation. For a mother to lose a child that she had carried for all the 10 months immediately after its delivery in about 4 months, it is truly a poignant situation. I will enhance the award to Rs.2 lakhs in full quit of all claims and the amount in excess of what was already determined shall be paid by the insurer within 4 weeks from the date of receipt of copy of this order. If the amount is not paid, it will also carry interest at 6% from today. The appeal is allowed to the above extent. (K. KANNAN) JUDGE 03.06.2011 sanjeev