FAO No.344 of 1988 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.344 of 1988 Date of Decision. 29.09.2010 Pishori Lal Nanda s/o Brij Lal Nanda, 81/11, Subhash Nagar, Gurgaon ......Appellant versus Harbans Lal Gunjal s/o Chandu Ram Gunjal and others .............Respondents 2. FAO No.345 of 1988 Pishori Lal Nanda s/o Brij Lal Nanda, 81/11, Subhash Nagar, Gurgaon ......Appellant versus Kailash Poddar son of N.L. Poddar and others .............Respondents 3. FAO No.346 of 1988 4. FAO No.347 of 1988 Pishori Lal Nanda s/o Brij Lal Nanda, 81/11, Subhash Nagar, Gurgaon ......Appellant versus Sanjiv Trehan and others .............Respondents 5. FAO No.390 of 1988 Pishori Lal Nanda s/o Brij Lal Nanda, 81/11, Subhash Nagar, Gurgaon ......Appellant versus Nirmal Kumar Jain and others .............Respondents Present: None for the appellant. Mr. R.M. Suri, Advocate for respondents Nos.1 and 2. FAO No.344 of 1988 -2- None for respondent No.3. Mr. A.K. Chopra, Senior Advocate with Mr. Harinder, Advocate for respondent No.4. Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for National Insurance Company Limited. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for New India Assurance Company Limited. 6. FAO No.499 of 1988 7. FAO No.500 of 1988 Sanjiv Trehan son of H.N. Trehan, 4, The Mall Simla ......Appellant versus Ramphal son of Dhanu Ram and others .............Respondents Present: Mr. A.K. Chopra, Senior Advocate with Mr. Harinder, Advocate for the appellant. None for respondent Nos.1 and 2. Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for National Insurance Company Limited. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for New India Assurance Company Limited. 8. FAO No.621 of 1988 Harbans Lal and another ......Appellants versus Ramphal son of Dhanu Ram and others .............Respondents FAO No.344 of 1988 -3- 9. C.M. No.2715-CII of 1988 Malti Poddar w/o Shri Gopi Poddar ......Appellant versus Ramphal son of Dhanu Ram and others .............Respondents 10. C.M. No.2716-CII of 1988 Kailash Poddar s/o Sh. N.L. Poddar and another ......Appellants versus Ramphal son of Dhanu Ram and others .............Respondents Present: Mr. R.M. Suri, Advocate for the appellant. None for respondent Nos1 and 2. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for New India Assurance Company Limited. Mr. A.K. Chopra, Senior Advocate with Mr. Harinder, Advocate for respondent No.4. Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for National Insurance Company Limited. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. The batch of appeals relate to claims for death and injuries in a motor accident that involved the collision of two vehicles namely a maruti car and a truck. The accident was said to have taken place when the claimants, who were passengers in maruti car FAO No.344 of 1988 -4- travelling from Jaipur to Delhi dashed against a truck. Three persons died and two persons were injured. The appeals in FAO Nos.344, 345, 346 and 347 are filed at the instance of the insurer along with the owner of the truck questioning the compensation and negligence of the driver. 2. For the death of the child, the claim for compensation is the subject matter of challenge in C.M. No.2716 of 1988, which is originally for condonation of 36 days delay in filing the appeal. The delay is condoned. The claim for enhancement for death of a passenger of the vehicle is the subject matter of appeal in FAO No.621 of 1988 and for the death of yet another passenger, which is the subject of appeal in FAO No.499 of 1988. The claim for enhancement for injury sustained by another passenger is challenged in FAO No.390 of 1988 and the claim for enhancement for injury sustained by the driver-owner of the car is subject of challenge in FAO No.500 of 1988. 3. The appeal had been filed by the insurer along with the insured of the truck in so far as the award challenged the aspect of negligence as well as quantum. Subsequently, by an order issued on 19.08.2010, the insurance company had been transposed as one of the respondents and the appeal was heard with the insured as the appellant in cases relating to negligence and compensation. Since the issue of negligence has an immediate bearing to the manner of apportionment to the claims, it becomes essential to address the said issue before adverting the issue of quantum of compensation. 4. The averments in the claim petitions were that Sanjiv FAO No.344 of 1988 -5- Trehan along with his wife and three others were coming from Jaipur to Delhi in their car. At about 5.15 AM, the car was proceeding near Kasola Chowk P.O. Garhi Bolni when a bus emerged on the road at high speed from the opposite direction and to avoid the impact of the bus Sanjiv Trehan swerved the car to the left where there was already a truck parked and dashed against the same. In that process, front left side of the car struck against the rear side portion of the truck. The claimants would contend that the accident had taken place by the carelessness on the part of the truck driver, who had parked the truck on the left side of the road without any indication. The manner in which the accident had taken place is an admitted fact. It must be noticed that the owner and driver of the bus, who was alleged to be driven rashly from the opposite side have not been made as parties. It is not very clear from the evidence as to how any portion of liability could be fastened on the driver and the owner of the truck. The claimants have assumed that it was parking of the truck on the left side of the road that was responsible for the accident and therefore, had impleaded the owner, driver and the insurer of the truck alone. The entire body of evidence has, therefore, been directed to consider the issues of negligence between the driver of the car and the driver of the truck. Even when the driver of the car, who was himself a witness of the accident had spoken about the accident, the respondents did not bring any evidence on record. If there was an admission that the truck had been parked without sufficient signal, there was no evidence on behalf of the owner of the truck that there had been FAO No.344 of 1988 -6- sufficient parking space for the truck and the parking of the truck was not in a dangerous place. An independent eye witness Rajinder Singh had also spoken about the accident, apart from the evidence of passengers in the vehicle namely of Sanjiv Trehan and Nirmal Jain. The respondents still had something to rely on namely the version of the accident as given in the FIR lodged by Nirmal Jain where he had stated that it was on account of the faulty driving of Sanjiv Trehan that the accident took place and that he was half sleepy and had not been sufficiently vigilant. This was the first version of the accident. Subsequently, the narration was modified during the trial to place the blame wholly on the driver of the truck for negligently parking the vehicle at an inappropriate place. The author of the FIR Nirmal Jain himself had not given any explanation for his own first version given in the FIR. The Tribunal still found only that the driver of the truck did not examine himself, which according to it, ought to be taken that the truck driver alone was responsible for the accident. I do not think it will be correct to place the whole of the blame on the driver of the truck. If it had been parked in a wrong place even then, it cannot explain the dashing of the maruti car at the back side of the truck as resulting only out of the negligence of the parking of the truck. The driver of the car had a larger role to play. I have already observed that the alleged rash driving of the yet another vehicle coming from the opposite direction was said to have been the reason for the driver of the car to swerve it to the left but the owner and driver of the said vehicle have not been made parties. If the apportionment of FAO No.344 of 1988 -7- negligence must be seen only between the truck driver and the car driver, I would find them to be both negligent and by the fact that the driver of the truck did not examine himself and by the fact that the witness did not properly explain the first version in FIR, I would apportion the liability between the truck and the car as 2:1 or 2/3:1/3. The New India Assurance Company Limited is the insurer of the truck and the National Insurance Company Limited is the insurer for the car. The liability of National Insurance Company is made on the basis that there was an insurance cover for the passengers in the private car. 5. The case relating to compensation is taken on the same order in which the claim petitions have been disposed of by the Tribunal. As regards the claim for compensation relating to the death of Arun Podhar, who was seated at the back seat next to the wife of Sanjiv Trehan, the claimants are the parents. Arun was a child aged 4 to 5 years. The Tribunal awarded a compensation of Rs.20,000/- for the death of the child relying to a judgment in Abdul Wahah and another Vs. Chandra Prakash 1985 ACC 285. In that case, the child was aged 2 years. The present trend of compensation awarded for the child is in the range of Rs.2 lacs and Courts have provided for a special damages of Rs.50,000/- for death of the child. The case has been dealt with in the year 1988 and it will not be possible for me to accommodate the present scale of compensation. Considering the fact that the amount has been deposited by the insurance company even in that year, I would provide for a compensation of Rs.1,00,000/- instead of Rs.20,000/- FAO No.344 of 1988 -8- as awarded by the Tribunal and the liability must be apportioned by the New India Assurance Company Limited to the extent of Rs.66,666/- and the National Insurance Company Limited, which was the insurance for the car shall bear the liability to the tune of Rs.33,333/-. The amount which is determined in excess shall be borne by the respective insurer. The excess over what was already awarded by the Tribunal shall also bear interest @6% from the date of the petition till the date of payment. The award is modified and the appeal in FAO Nos.345 and C. M. No.2716 of 1988 stands disposed of to the above extent. 6. As regards the claim for the death of Anup Gunjal, the compensation that has been claimed is to the extent of Rs.3 lacs. The claim has been made by the parents namely Harbans Lal and Chanderani Gunjal. Anup was 29 years of age and the evidence was that he was working in Shree Food Products and used to get a salary of Rs.1400/- per month. It was also in evidence that he was getting a daily allowance of Rs.30/- to 35/-. The salary certificate had been produced. He was stated to be a TV star and was working in Prithvi Theatre. It was also stated that he was getting Rs.1500/- per month from Prithvi Theatre. The Tribunal rejected the contention that he was earning any amount for his histrionic abilities. It also reasoned that a whole time employee could not have devoted himself at all times and the entire claim was, therefore, rejected. I will accept in part the evidence that he was earning an additional sum as daily allowance and also some amount towards his acting abilities. I would take the total income at Rs.2500/- per month and considering FAO No.344 of 1988 -9- the fact that he was merely aged 25 years, make an additional provision for future increase and take the average income to be Rs.3,000/-. The claimants were parents and therefore, the Tribunal had adopted a multiplier of 10 taking age of the parents as relevant. The Tribunal had deducted 1/3rd for his personal expenses and took the contribution to the family at Rs.12,000/- per year and adopted a multiplier of 10 to arrive at a figure of Rs.1,20,000/-. I would instead take the monthly income to be Rs.3,000/- and deduct 50% of the same as going towards personal expenses taking Rs.1500/- per month contribution to the family. Annual dependence would be Rs.18,000/-. I would adopt a multiplier of 18 and the amount would be Rs.3,24,000/-. I will add Rs.11,000/- towards the conventional heads of claim for loss to estate, funeral expenses and love and affection and round off the figure to Rs.3,35,000/-. The amount in excess over what has been determined will bear interest @6% from the date of petition till the date of payment. The entire compensation shall be borne between the New India Assurance Company Limited and National Insurance Company Limited in the ratio of 2:1 in the manner referred to above. 7. The appeals filed in FAO Nos.344 and 621 of 1988 are disposed of as above. 8. The MACT Case No.72 of 1986 related to a claim for compensation for injuries sustained to Nirmal Kumar Jain, who was also the author of the FIR. He claimed Rs.1,00,000/- for injuries sustained in the accident. He stated that he was under treatment for one day and spent Rs.2500/- on his treatment. It was stated that FAO No.344 of 1988 -10- he was a computer consultant and was earning Rs.18000/- per annum. He was also an income tax assessee and the assessment reports have been filed Ex.PW5/A and PW5/B. The Tribunal referred to the medico legal report of PW4/A that showed that he had four simple injuries and there had been no fracture. He was in the hospital only for a day. The Tribunal found that there had been no bills for purchase of medicines and therefore, awarded a compensation of Rs.50,000/-. There is no appeal for enhancement against the same. Only the insurance company has come on appeal in FAO No.390 of 1998. This case would require a modification only in so far as the apportionment of liability in the manner that I have already examined and stated that the amount shall be borne between the New India Assurance Company Limited and National Insurance Company Limited in the ratio of 2:1. The appeal in FAO No.390 is disposed of as above. 9. The claim in MACT case No.74 of 1986 was a claim for compensation by Sanjiv Trehan for death of his wife at Rs.10 lacs and MACT case No.73 of 1986 for his own injuries for which he has made a claim for Rs.5 lacs. The claims for enhancement of compensation have been filed by Sanjiv Trehan in FAO Nos.499 and 500 of 1988 respectively. As regards these claims, the appeals by the insurance company have been filed in FAO Nos.346 and 347 of 1988 against the award. FAO No.346 is for death and FAO No.347 is for injuries. While dealing with the heads of compensation for the death of his wife Anita, the Tribunal held that the deceased was 24 years of age and had a certificate for a business as a beautician and FAO No.344 of 1988 -11- at the time of her death, she was also an income tax assessee. The assessment order has been produced as P-39. It was stated that her income in the year 1986 was Rs.25,000/- per annum. She had visited USA twice. They had a rented house at Rs.2300/- per month. This was to suggest that their income must have yielded surplus to afford a rental of Rs.2300/-. From the documents relied on by the claimant, the Tribunal held that gross income of the deceased in the year 1986-87 was Rs.23,130/- and for 1985-86, her income was shown as Rs.16,827/- as per Ex.P-39. Between the two amounts, the Tribunal could not have made an average of the lower and the higher part of the income but must have been seen it as a progressive increase of income that she was getting over two years. The Tribunal must have only seen that there was a possibility for future further increase, which I would afford to her at 50% of what she was earning and take an additional sum of Rs.12,000/- per year and take the annual income to be Rs.36,000/- against Rs.18,000/- taken by the Tribunal. Taking the average income to be Rs.36,000/- per annum, I would provide for 1/3rd deduction towards her own personal expenses and take the contribution to the family as Rs.24,000/- per annum. She was aged 25 years and I would provide for a mutliplier of 18, which makes the amount paybale to Rs.4,32,000/-. I would add towards loss of consortium, funeral expenses and loss to estate Rs.20,000/- and aggregate the amount to be Rs.4,52,000/-. The Tribunal has awarded a sum of Rs.1,60,000/-. The additional amount bear an interest @6% from the date of the petition till the date of payment. The amount of compensation shall likewise be FAO No.344 of 1988 -12- borne in the ratio of 2:1 by the New India Assurance Company Limited and National Insurance Company Limited. The applicant, Malti Poddar in C. M. No.2715-CII of 1988, who was the mother of the Anita Trehan, had independently filed a petition but later withdrew the same and filed an application for claiming compensation along with husband of the deceased. The Tribunal while dismissing the petition has observed that after the marriage of Anita Trehan, there was no proof that the mother was still dependent on her daughter. The evidence was that the deceased used to live with her for 20 days and assisted her in the household. Gratuitous services of a daughter after marriage cannot give rise to cause of action for mother to claim compensation. The claim must rest either in her capacity as a legal representative, who was dependent on the deceased or must be as a legal heir. Mere filial affection that a mother bears to her daughter cannot a bsis for claim after the daughter's marriage. The award rejecting her claim was justified and the application filed by her shall stand dismissed. 10. The FAO Nos.347 and 499 of 1988 relate to the claim for compensation for injuries arising out of the accident. The evidence was that he had been taken to Civil Hospital at Rewari. Both his feet got fractured and he also got injuries to his knee and collar bone. His ear and tongue had been cut. He also received injuries on chin and other parts of the body. He was shifted to the All India Institute of Medical Sciences, New Delhi and later, taken to Dr. Sanghi's Nursing Home where Dr. Rohtas Grover an orthopaedic surgeon treated him. He would state in his petition that as a result FAO No.344 of 1988 -13- of injuries, he was unable to walk without the assistance of a stick. He could not flex his knees and cannot squat. He cannot drive a scooter or car. He was also unable to do his business regularly. He would state that he used to normally undertake frequent business visits to Shimla for his business that would require long walking distance between his house and shop. The medical bills had been produced as P/7 to P/14 and the disability certificate had been produced as P-28. He was having a diploma in Industrial Management as evidenced through P/29 to P/31. He was also an income tax assessee and the assessment orders had been produced as P/32 to P/36. He was young and prospect of remarriage had been, according to him, reduced by virtue of the disability that he had. He would state that he has engaged a servant and he was paying to him Rs.800/- per month. He was spending Rs.150/- per day for taxi to attend his business. PW-4 gave the medico legal report and PW-7 Dr. Jain had brought the records from the Safdarjang Hospital, Delhi that showed that he was admitted on 15.05.1986 and discharged on 18.05.1986. Dr. Rohtas Grover PW-9 had given treatment to him and he gave evidence to the effect that Sanjiv Trehan was not in a position to move about and was on a stretcher. The patient had been advised to have periodical check up for removal of plaster and bandages and he had been advised to walk with the help of walker. All the medical records relating to his treatment are produced as P-15 (recording his injuries), P17, P9/A, P9/F (x-rays), P-24 to P-27 (prescriptions). P/28 was the disability certificate, according to which the patient had a permanent FAO No.344 of 1988 -14- disability to the extent of 30% on the left lower limb and 15% on the right lower limb. 11. Considering all these injuries, the Tribunal held that the medical bills produced from P-7 to P-14 showed an amount of Rs.2084/- and rounded the figure to Rs.2100/-. The evidence, however, was that he had spent out Rs.15,000/- to Rs.20,000/- and finding that the bills had been produced only to the tune of Rs.2100/-, the Tribunal took the compensation to be Rs.5,000/-. I would enhance the compensation from Rs.5,000/- to Rs.10,000/- and provide for Rs.5,000/- having regard to the extensive injuries and the period of treatment. The Tribunal again awarded Rs.1,000/- towards the transportation to go to the hospital and several other visits. I would increase the same twofold and provide for an additional amount of Rs.1,000/-. For pain and suffering, the Tribunal had provided for Rs.20,000/- and Rs.5,000/- for special diet. I would increase the claim for pain and suffering by another Rs.10,000/- and a further sum of Rs.5,000/- towards special diet to what has already been awarded. Considering the fact that he has been income tax assessee and his business loss could have arisen, the Tribunal took Rs.30,000/- as the compensatoin for 30% disability. He has given as Rs.2,000/- per month and I would take the loss of income due to his hospitalization for three months at Rs.6,000/- and take the 30% disability to have resulted in a like figure of earning capacity having regard to the fact that he was a businessman in a hilly place where he has to undertake travels and by the nature of injuries, he had been hampered in his movements. I would assess FAO No.344 of 1988 -15- the compensation for loss of earning capacity as Rs.24,000/-. This will mean an additional amount to what has already been granted as Rs.30,000/- under this head. The Tribunal has provided for Rs.5,000/- for attendant charges, which I will retain. The Tribunal has also provided for Rs.25,000/- towards the loss of amenities of life for having a loss of his own wife and for loss of prospects of future marriage. I will retain the same. In the manner in which I have provided for the compensation, there has been an additional sum of Rs.1,24,000/-. This additional amount will bear interest @6% from the date of the petition till the date of payment. The amount of compensation will also be apportioned in the ratio of 2:1. As regards the compensation for liability of the National Insurance Company, it has already come on record that the claimant has recived an amount of Rs.10,000/- under a personal accident cover with the insurance company. If the laibility of the insuer has stood restricted to Rs.10,000/-, the claim in excess of the amount on the basis of apportionment worked out shall stand abated against the National Insurance Company Limited alone.