FAO No.2226 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH X Obj No.41-CII of 2005 FAO No.2226 of 2001 Date of Decision. 23.08.2010 The New India Assurance Co. Ltd., through its Assistant Manager, Regional Office, SCO 36-37, Sector 17, Chandigarh. ......Appellant Versus Smt. Harbans Kaur wife of Sh. S. Bhagwant Singh and others ......Respondents Present: Mr. V. Ramswaroop, Advocate for the appellant. Mr. S.M. Suri, Advocate and Mr. Neeraj Khanna, Advocate for the cross objectors. Mr. Ashwani Talwar, Advocate and Mr. Rahul Garg, Advocate for respondent No.8. 2. FAO No.3059 of 2001 Oriental Insurance Company Limited through its Regional Manager, SCO No.109-111, Sector 17-D, Chandigarh ......Appellant Versus Smt. Harbans Kaur wife of Sh. S. Bhagwant Singh and others ......Respondents Present: Mr. Ashwani Talwar, Advocate and Mr. Rahul Garg, Advocate for the appellant. Mr. S.M. Suri, Advocate and Mr. Neeraj Khanna, Advocate for the claimants. Mr. V. Ramswaroop, Advocate for respondent No.7. FAO No.2226 of 2001 -2- CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 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. The twin appeals arise out of the same accident. The accident resulted in death of a passenger in a car that struck with the parked truck. The deceased was a businessman engaged in import and export and domiciled in USA. The claimants were wife, minor son and the parents. The contention in the petition was that the truck had been parked on the main road without adequate parking lights and the accident took place when the driver of the car was attempting to overtake yet another vehicle and finding that it was not possible on account of another vehicle coming from the opposite direction blinding the sight of the driver by its headlights, the driver attempted to draw the car towards left when he dashed against the parked truck. In the claim petition, the owner of both the vehicle as well as the respective insurers had been made as parties. The owner of the car had filed written statement contending that the truck was responsible for the accident but he denied his stand at the evidence when he said that it was his own driver, who was responsible for the accident. Learned counsel appearing for the insurer for the car namely the New India Assurance Company Ltd. would, therefore, contend that the owner had given a modified version only to make the insurer liable for a larger sum and therefore, the statement already filed by him ought to have been FAO No.2226 of 2001 -3- the only basis for fixing the liability. The Oriental Insurance Company, which was the insurer for the truck contended that the truck was after all parked in one side and the evidence revealed that the accident took place only on account of the negligence of the driver of the car trying to swerve the vehicle to the left extreme portion of the road but still dashed against the stationary truck only on account of his negligent driving. Mr. Talwar, learned counsel for the Oriental Insurance Company, would, therfore, contend that the negligence was wholly of the car and no part of negligence could be attributed to the truck. 2. Before the Tribunal, on the evidence led by the respective parties, it was held that the apportionment of liability between the car owner and the truck ought to be in the ratio of 60:40. This apportionment of liability is the principal ground of challenge for the insurance companies. 3. In a case where there is an inter se dispute between the respondents, it shall not be sufficient to merely take the version of the claimant. An ultimate decision could be given only on sifting the divergent versions given by the parties. If there was a parked vehicle and still there had been a collision, it is normally be taken only that the vehicle, which dashed against the parked vehicle, was responsible for the accident. The aggravating circumstance could be when the parked vehicle had been parked inappropriately at the middle of the road or without adequate parking lights. The mitigating circumstance, on the other hand, would be when the vehicle had been parked to the left side but still a collision had FAO No.2226 of 2001 -4- taken place by virtue of the fact that there were no adequate sign that the vehicle had been parked on the side. In any event, a greater share of responsibility must be taken by a person, who dashed against the parked vehicle unless the place of parking was at the middle of the road. Learned counsel appearing for the Oriental Insurance Company Ltd. would also contend that even the criminal case had been lodged only against the driver of the car and the truck driver had not been proceeded against. It could be easily imagined that no negligence could be attributed to driver, who had parked the truck on the left side of the road but when we are considering the issue of negligence, we are considering it not merely from the point of negligence of driving of the drivers but also of any other factor that could have caused the accident. In this case, the contention was that the truck had been parked without adequate signs or parking lights and therefore, the car driver could not avoid hitting the truck at the last minute in his attempt to save himself from hitting the oncoming vehicle. On the rival contentions of the parties, the Tribunal has apportioned the liability as 60:40. I affirm the same and dismiss the appeals of the Insurance Companies. 4. The case would require consideration for a claim of enhancement by the legal representatives of the deceased traveller in the car. Before the Tribunal, a copy of income tax return had been filed, which was objected to by the insurance company that it was not authenticated. The document showed that the deceased was having an income of U.S. $ 24,800 per annum. He had obtained a standard deduction of about $ 6000 for a surviving spouse and the FAO No.2226 of 2001 -5- taxable income had been reckoned for the remaining amount. The Tribunal deducted $ 6000 as income not available and took 50% out of the remaining amount as the amount going towards the wife and out of the balance of $ 10,000, it took the contribution to the family as $ 4000 and odd. The method of arriving at the dependence meets no logic. The simple approach must have been to take the gross income and deduct the tax and out of the remaining, provide for a deduction for personal expenses and take the remaining as constituting the multiplicand. The choice of multiplier must have been made to depend on the age of the deceased with particular reference to the fact that amount involved is a sufficient large sum and hence for the income of the deceased in foreign exchange in US Dollars, a relatively stronger currency to Indian currency, the choice of multiplier in such a case must be considered in the manner provided in the decision in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and others 2002 (6) SCC 281. The Hon'ble Supreme Court has cautioned in the said judgment that the choice of multiplier cannot be merely of what is provided under Schedule II but it should be even a lesser figure. 5. In this case, the first aspect that has to be looked into is the authenticity of the document that had been filed before the Tribunal. The document was a copy certified by the Indian Consulate and did not bear the stamp of the Income Tax Department. However, I do not take it as very material, for I cannot suspect the genuineness for document when it even bore an authentication from the Embassy. The amount described as the FAO No.2226 of 2001 -6- annual salary of the deceased was $ 24,800 and the $ 6000 which had been deducted ought not to be deducted as income not available to the deceased. On the other hand, it was merely a deduction permissible by law in U.S.A., as it would seem for arriving at the taxable income. The ultimate dependence worked out by the Tribunal could not have been even less than $ 6000 which even the tax law provided as expenditure for the wife. I would take 35% of $ 24,800 as the tax payable, which will be $ 17420. Considering the fact that the deceased had wife and son besides parents as his dependents, I would provide for 1/3rd deduction towards personal expenses though as per the decision in Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121, it could have been 1/4th. The deduction as 1/3rd is on account of the fact that a higher style of living would have involved greater consumption for personal expenses and therefore, 2/3rd of $ 17420 would constitute the yearly dependence that could be $ 11413, which I would round off to $ 11500. The multiplier for a person aged 35 years as per the decision in Sarla Verma's case (supra) would be 16 but it will not be appropriate for a person, who was in a higher income dealt with in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan and others 2002 (6) SCC 281. The Hon'ble Supreme Court was referring to deviation from the Schedule multiplier when there was special features of facts calling for such deviation. Dealing with the case of foreign petitioner, the Hon'ble Supreme Court has held that even the amounts paid under the Social Security System of the country would have no co-relation to the accidental death and hence would not FAO No.2226 of 2001 -7- deductible. The Hon'ble Supreme Court was adopting a multiplier of 10 for a person aged about 41 years while reducing the multiplier adopted by the High Court at 13. They were dealing with the case of a person, who was aged 47-48 years. In this case, the person was at least 10 years younger and in my view, the appropriate multiplier would be 12. So reckoned, the amount that would become payable would be $ 1,38,000. The judgment in Patricia Jean Mahajan referred to above is again an authority for the relevant exchange rate, which is applicable, whether it is the date of petition or the date of order. The Hon'ble Supreme Court was adopting the current rate as the rate of exchange that should be applied. The Tribunal had taken the exchange rate on the date of passing of the award, which I shall retain. At the time of passing of the award, it was Rs.46.61 and the amount equivalent by the same will be Rs.63,48,000/-. The amount awarded by the Tribunal shall stand increased to the above-said amount and the liability will continue to be apportioned in the manner as was determined by the Tribunal. The additional amount of what has been ascertained now shall attract interest @6% from the date of the petition till the date of payment. 6. The cross objection filed by the claimants for enhancement shall stand allowed to the above extent. (K. KANNAN) JUDGE August 23, 2010 Pankaj*