FAO No. 1952 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Cross Objection No. 079-CII of 2010 and FAO No. 1952 of 2010(O&M) Date of decision November 30, 2010 Dr. K. K. Sharma and others ....... Appellants Versus Bandana and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Sandeep Khunger , Advocate for the appellant. Mr. Vinod Gupta, Advocate for respondent No.3. **** 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 appeal is filed by the claimant for enhancement. The deceased was 88 years of age and was a pensioner. The first claimant who was his widow aged 78 years died pending the proceedings. The grand sons and daughters are the claimants now. 2. While ascertaining the compensation the Court made a deduction of 2/3rd took 1/3rd as going to the estate and adopted a multiplier of 4. The Court awarded Rs.1,12,560/- as loss due to dependency added Rs.2500/- for funeral expenses and Rs.2500/- as loss of estate. I cannot find fault with the Tribunal recording the loss of dependency and the assessment made for funeral expenses and loss of estate. The deceased was 88 years of age and the compensation should have been only on some guess work. Even a deduction of 2/3rd cannot be taken to be wrong since under the pensionary scheme, the widow should FAO No. 1952 of 2010(O&M) 2 have drawn pension. She has also died during the pendency of the petition. The sons and daughters were not shown to be dependent in any way and what was taken as dependency is really an assessment of compensation for loss of estate of a gentleman. 3. As regards the medical expenses claimed the Tribunal held that the expenditure must have been made only by the deceased and the claimants were not shown to have incurred the expenditure. This is an error in legal reasoning for expenditure incurred by the deceased was a burden on the estate of the deceased and the legal heirs therefore would have suffered a depletion of the estate. The claimants were entitled as legal representatives to claim the entire expenditure incurred by the deceased. The medical expenses said to have been incurred and proved on record showed an amount of Rs.4,62,216/- . The entire amount ought to have been awarded to the claimant and the same has not been done. I will provide for the entire amount of medical expenses incurred as repayable to the legal representatives of the deceased. I would not provide for any further amount under other heads as sought for by the claimants. There is a cross appeal by the driver on the ground that the award ought not to have been provided for a right of recovery against him on the ground that he had merely learner's driving license. The issue has been settled through the decision of the Hon'ble Supreme Court in National Insurance Co Vs. Swaran Singh (2004) 3 SCC 297 where the earlier observations of the Hon'ble Supreme Court in Madhav Tambi's case was explained and read down. I will, therefore, make the insurer liable and provide to the owner and the driver indemnity for the amount which the claimants are entitled to receive from the insurer. 4. The award of the Tribunal is modified and enhanced to the extent indicated above and further modified with reference to entitlement of the owner and driver to be fully indemnified by the insurer. FAO No. 1952 of 2010(O&M) 3 The amount that stands shall bear interest at the rate of 6% per annum from the date of the petition till the date of the payment. The amount of Rs.25,000/- deposited by the driver along with the cross appeal is permitted to be withdrawn. 5. The appeal and the Cross Objection are disposed of. (K. KANNAN) JUDGE November 30, 2010 archana