IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.849 of 1992 (O&M) Date of decision:24.01.2011 Raghbir Singh and another ....Appellants versus Simer Kaur and others ..Respondents II. Cross Objection No.33-CII of 1993 in FAO No.850 of 1992 (O&M) Raghbir Singh and another ....Appellants versus Paramjit Kaur and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Animesh Sharma, Advocate, for the appellants. Mr. Gursimran Singh, Advocate, for Mr. Navkiran Singh, Advocate, for the Cross-objectors in FAO No.850 of 1992. Mr. Jai Bhagwan, Advocate, for respondents 1 to 6 in FAO No.849 of 1992. Mr. Pradeep Goyal, Advocate, for the Insurance Company. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. Both the cases are connected and they are taken up together and are disposed of by a common order. 2. FAO Nos.849 and 850 of 1992 relate to appeals by the FAO No.849 of 1992 (O&M) - 2 - owner challenging the issue of restriction of liability of the insurer to Rs.1,50,000/- in any one of the accident as well as the issue of negligence as attributed to the driver of the truck. 3. The appellants' counsel also would make an argument about the negligence attributed to the driver of the truck by contending that the driver of the other car which had been involved in the accident in which the claimants were travelling was driven by a person, who had taken premature retirement from the military and, therefore, he was not in a fit state to drive the car and his negligent driving alone had contributed to the accident. I cannot make a presumption of negligence or contributory negligence by the fact that the driver had any disability, so long as such disability did not dis-entitle to secure a licence to drive a car. In any event even that has no relevance, considering the fact that the appellant had given up the issue of quantum as awarded to the claimant in the appeal that the appellant had filed. If there could not have been any abatement to a claim for a claimant, then it only meant that the issue of contributory negligence does not survive for consideration. 4. As regards the contention whether the liability of the insurer is restricted only to Rs.1,50,000/- as contended by the insurer, the answer is straight forward and simple. The limit of liability was so stated to be restricted in terms of the policy. In this case, a basic premium of Rs.500/- had been collected and it had also covered the risk for own damage. The learned counsel for the appellant would contend with reference to the decisions held by the High Courts at Rajasthan, Madhya Pradesh and Delhi (in Smt. Chand Kanwar Versus Mannaram and FAO No.849 of 1992 (O&M) - 3 - others-1986 AIR (Raj)2, The Oriental Fire and General Insurance Company Limited Versus Smt. Shahjehan Begum and another-1997 AIR (M.P.) 1 and in Mr. Madan Lal Versus Mrs. Phool Kumar-1998 (4) RCR (Civil) 438) that a stipulation in the policy that the liability shall be as prescribed under the Motor Vehicles Act of 1939 cannot be understood as restricting the liability to merely Rs.1,50,000/-. It is not in denial that the accident had taken place when the Motor Vehicles Act of 1939 was in force and the policy made specifically limited the liability to a third party on Rs.1,50,000/-. The learned counsel refers me to decisions of the above Courts where the stipulation was as per the limitation of liability as required to be done under the Act. In this case, the terms of policy admit of no ambiguity and specifically states that third party liability to be restricted to Rs.1,50,000/-. I will not have therefore any requirement to discuss these decisions. I will not enter into an academic discussion of what an expression such as, a limitation of liability as per the Act would mean. I will reserve it for some other occasion. Here, the liability issue is anchored to what the policy specifically stipulates and, therefore, there is no scope for diluting the terms of policy to provide for an additional cover for a third party for enforcement against the insurer. Any amount determined in excess of Rs.1,50,000/- shall recoverable by the claimant only against the owner/insured. 5. There is cross objection also in FAO No.850 of 1992 seeking for enhancement of claim for death of a person, who was a Junior Engineer, aged 50 years. The wife had contended that he was 42 years of age but considering the fact of one of the claimants that he was FAO No.849 of 1992 (O&M) - 4 - 25 years of age, the Tribunal held that he must have been at least 50 years of age. This was corroborated by the entry of age in the post- mortem certificate. Grievance of the claimants is that the Tribunal did not provide for an appropriate multiplier and did not also provide for conventional heads of claim such as, loss of consortium, loss to estate, etc. There were four claimants, of whom the eldest boy was of 25 years of age, he was not found to be dependent and hence, no amount was awarded to him. I take the number of dependents as three and provide for a 1/3rd deduction for personal expenses and take the contribution to the family at Rs.21,648/-. I will provide for a multiplier of 13 and hold of loss of dependency at Rs.28,1424/-. I will make an addition of Rs.5,000/- for loss of consortium and also make additions towards loss of love and affection for two dependent children, loss to estate and funeral expenses to round off the figure at Rs.3 lakhs. The amount in excess over what has been awarded by the Tribunal already shall attract interest at 6% from the date of petition till date of payment. Having regard to the confirmation of the award of the Tribunal and dismissal of the appeal filed by the owner, I will hold the liability of the insurer shall stand restricted to Rs.1,50,000/- only and the amount in excess which is now determined shall, therefore, be recoverable only from the owner/insured and not from the insurer. The cross-objection is allowed to the above extent. The appeals are dismissed. (K.KANNAN) JUDGE 24.01.2011 sanjeev