FAO No.347 of 1998 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH X Obj No.42-CII of 1998 in/and FAO No.347 of 1998 Date of Decision. 19.08.2010 The New India Assurance Co. Ltd., through its Assistant Manager, Regional Office, SCO 36-37, Sector 17, Chandigarh ......Appellant Versus Paramjit Singh Sullar son of Jashmer Singh Sullar and others ......Respondents 2. X Obj No.43-CII of 1998 in/and FAO No.348 of 1998 The New India Assurance Co. Ltd., through its Assistant Manager, Regional Office, SCO 36-37, Sector 17, Chandigarh ......Appellant Versus Shamsher Singh Sullar, Advocate son of Narain Singh and others ......Respondents Present: Mr. V. Ramswaroop, Advocate for the appellant. Mr. K.S. Sidhu, Senior Advocate with Mr. G.S. Benipal, Advocate for the cross objectors/respondents. 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.(ORAL) 1. The two appeals arise out of the award where the Insurance Company challenges the liability on the ground that the quantum and negligence of the driver had not been established. It was a case where before the Tribunal, the driver had filed a FAO No.347 of 1998 -2- statement but later did not participate in the trial and the owner remained ex parte. Learned counsel appearing for the insurer would contend that although application under Section 173 of the Motor Vehicles had not been flied, there were circumstances, which showed that there was a collusion and therefore, the insurer had been allowed to cross-examine the claimants' witness also on the issue of negligence and quantum. 2. In the application filed under Section 170 of the Motor Vehicles Act before this Court, the contention of the insurer is that he had been allowed to examine the witnesses at length for the purpose of assessment of compensation. A sweeping statement was made that the owner of the vehicle in the accident is conniving with the claimants. The case of collusion is an aspect that ought to be addressed at the trial before the conclusion of arguments so that parties are put to sufficient notice and if need be, the claimant himself could have given appropriate evidence to deny the so called collusion. Collusion cannot be a matter of pure inference in the absence of such a contention raised by a party. If the limitation imposed on the insurer to join issues on quantum and negligence, it is a part of statutory scheme in a welfare legislation, that an insurer whose business is to pay compensation for death or injuries, does not breach the trust by indiscriminate and irresponsible pleas. The insurer had at all times the benefit of legal advice and after suffering an award, it cannot urge for the first time in appeal that there had been a collusion. The post assessment of collusion should also be on some basis. The quantum in the award itself cannot be such a basis. It should come through evidence alliunde. I find no FAO No.347 of 1998 -3- such basis in appeal and in my view, it will be wholly inappropriate for an insurance company to urge a case of collusion with no materials at all. The plea, which is taken in the Appellate Court will cause serious prejudice to the claimants and therefore, it cannot be permitted. If the permission is refused, the issue involved in this case is with reference to the quantum and negligence, both of which shall be impermissible for an insurer to urge in appeal. The appeals by the insurance company are, therefore, dismissed. 3. In cross objection in FAO No.347 of 1998, the contention is that the Tribunal has adopted a multiplier of 5 for a person aged 58 years, who was an advocate by profession and it was grossly low. The claimants would contend that the deceased was earning Rs.50,000/- but the Tribunal took the income to be Rs.20,000/-. The tax said to have been paid for 1997 was in the range of Rs.6,000/-. The claimant definitely had documentary proof for the income earned by him but the same was not produced before the Court. It is not as if he was not an income tax assessee. If an evidence of payment of tax could be produced by the claimant, the fact that they did not think of producing the income tax return, would lead only to an inference that if it had been produced, it would have shown the amount even less than what they were claiming for. In the absence of income tax return, the assessment of income at Rs.20,000/- per month taken by the Tribunal itself, in my view, is high. The choice of multiplier will have to be applied to a multiplicand and if the Tribunal was taking the monthly income to be Rs.20,000/-, it only means that it was providing for annual income of Rs.2,40,000/- for which tax could not have been FAO No.347 of 1998 -4- Rs.6,000/-. If the formula in Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121 were to be accepted, the appropriate multiplier would have been 9 but in the ultimate scheme of things considering the fact that the Tribunal was awarding the amount of compensation without reference to actual proof of the income, it would not have been possible to provide for a compensation of Rs.10,00,000/-, I would not make any modification with reference to the award. The award is retained and the compensation determined by the Tribunal is not susceptible for any modification in appeal. The cross appeal is accordingly dismissed. 4. There is also a claim for enhancement even for injury sustained by the injured claimant which is the subject matter of FAO No.348 of 1998. The injury pertained to a fracture of the right hand for which assessment of 18% disability had been made. It was in evidence that the claimant had been under plaster for four months and the Tribunal had awarded Rs.4,25,000/-. No argument is advanced before me for any enhancement or no attempt was made to show that the award did not factor the relevant matter that had to be considered. The award relating to compensation for injuries is also retained. The cross objection for enhancement is likewise dismissed. (K. KANNAN) JUDGE August 19, 2010 Pankaj*