FAO No.860 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.860 of 1988 DATE OF DECISION: January 5, 2011 THE NEW INDIA ASSURANCE CO. LIMITED ...APPELLANT VERSUS NEELAM PURI AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement. Yes 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. L.M. SURI, SR. ADVOCATE WITH MR NEERAJ KHANNA, ADVCOATE FOR THE APPELLANT. MR. G.S. SIDHU, ADVOCATE FOR MR. P.S. KANG, ADVOCATE FOR RESPONDENTS NO.1 TO 3 AND 5. NONE FOR RESPONDENT NO.4. 2. FAO No.1042 of 1988 MRS. NEELAM PURI AND OTHERS ...APPELLANTS VERSUS SURINDER SINGH & OTHERS ...RESPONDENTS PRESENT: MR. ROHIT VERMA, ADVOCATE MR. MUNISHWAR PURI, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENT NO.1. MR. G.S. SIDHU, ADVOCATE FOR MR.P.S. KANG, ADVOCATE FOR RESPONDENT NO.2. MR. L.M. SURI, SR. ADVOCATE WITH MR. NEERAJ KHANN, ADVOCATE FOR RESPONDENT NO.3-INSURANCE COMPANY. FAO No.860 of 1988 -2- 3. FAO No.1060 of 1988 ASHOK KUMAR ...APPELLANT VERSUS SMT. NEELAM PURI AND OTHERS ...RESPONDENTS PRESENT: NONE FOR THE APPELLANT. MR. G.S. SIDHU, ADVOCATE FOR MR. P.S. KANG, ADVOCATE FOR RESPONDENTS NO.1 TO 3. NONE FOR RESPONDENT NO.4. MR. L.M. SURI, SR. ADVOCATE WITH MR. NEERAJ KHANN, ADVOCATE FOR RESPONDENT NO.5-INSURANCE COMPANY. K.KANNAN, J.(ORAL) 1. All the three appeals arise out of the same accident. FAO No.860 of 1988 is the appeal by the insurer taking a plea of restriction of liability, FAO No.1042 of 1988 is an appeal by the claimants seeking for enhancement and FAO No.1060 of 1988 is by the owner-driver questioning the finding of negligence attributed to the driver of the truck. 2. The accident arose by a collision of truck with a car and the passenger in the car had died. The deceased was working in a private company and earning previously to his death `4500/- and later left the job and started his own company where he provided himself `3500/- as income and `1750/- as house rent allowance. He had taken up the work as Consultant in an Engineering company at `30,000/- per annum. He was an income tax assessee. For the assessment year 1984-85 his income was assessed at `45060/- and for the year 1985-86 his income was assessed at `26390/- for 6 months. It is contended on behalf of the claimant that the FAO No.860 of 1988 -3- Tribunal had taken the income only at `3750/- and it had not taken note of the fact that the claimant had also taken consultancy work and he was being paid `30,000/-. Learned counsel appearing on behalf of the insurance company would point out that it was merely a one year assignment and it could not be taken as a regular feature of income. This is a case where he had started his own business and was providing for himself an income of `5250/- including the house rent allowance and he was also taking consultation fee, which may or may not have been continued in future. I still take on an over all consideration of the fact that he was previously earning `4500/- in an another establishment. I would take the monthly earning at `6500/- and provide for deduction of 10% towards tax and take the amount at `5850/- as the income earned by him. I would provide for 1/3rd deduction and take 2/3rd of the same as contribution to the family and adopt a multiplier of 15 as suggested in the decision of Hon'ble Supreme Court in Sarla Verma vs. DTC, reported as 2009 6 SCC 121. The loss of dependency would be `7,02,000/-. I would add `5000/- towards loss of consortium to the wife and another `5000/- towards love and affection for the two minor children. I would add another `5000/- towards loss of estate and `2500/- towards funeral expenses and the total amount that will become payable is `7,19,500/-. The Tribunal has already awarded `4,32,000/- and the amount in excess over what has been granted by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. 3. As regards the claim of the insurance company that the liability is restricted, I have seen the policy Ex.R1. The premium of `240/- has been paid towards liability to public risk, `24/- for paid driver and cleaner and FAO No.860 of 1988 -4- `32/- for four collies. This is apart from the comprehensive premium he had paid for covering the risk for own damage to the vehicle. There is no premium paid for unlimited third party risk and therefore, as per the terms of the policy, the liability stands restricted only to `1,50,000/- as provided by the Motor Vehicles Act, 1939 under Section 92-A. The insurance company shall, therefore, be liable to cover the risk only upto the statutory limit provided under in the Motor Vehicles Act of 1939 and the amount in excess shall be recovered only from the owner of the offending vehicle. 4. The question that has still to be answered that there should be any partial abatement or complete denial for this amount for any negligence that could be attributed to the deceased himself for causing the collision with the truck. Before the Tribunal eye witness account for the accident was given by PW3 Piara Singh who was a lambardar of the village and who stated that he saw that truck and the car proceeded in opposite directions towards each other and after the collision the truck still did not stop and the car had been driven to some distance by the impact by the truck. The Tribunal also considered the fact that the truck had traveled about 90 kms. in about 2 hours and 15 minutes and rejected the plea by the driver that he was driving the vehicle at a speed of 30 kms. per hour. The Tribunal has considered the oral evidence and made its own inference about the speed of the truck, judging from the commencement of the journey for the truck and the place of the accident, to hold that the driver of the truck alone must have been responsible for the accident. I would uphold the finding and see no reason to take a different view. The amount determined as above shall, therefore, be payable without any abatement by the insurer for `1,50,000/- with interest and the amount in excess of the same by the owner-insured. FAO No.860 of 1988 -5- 5. FAO No.860 of 1988 is consequently allowed to the extent of limiting the liability of the insurer, FAO No.1042 of 1988 is allowed to the extent of enhancement provided above and FAO No.1060 of 1988 is dismissed upholding the finding of the Tribunal that the driver of the truck was responsible for the accident. 6. There shall be no order as to costs. January 5, 2011 (K.KANNAN) Gulati JUDGE