New India Assurance Company Ltd v. Sahab Devi & ORS

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1.

New India Insurance Company Ltd.

..... Appellant

Versus

Smt. Sahab Devi and others ..... Respondents 2.

FAO-3374-2017 (O&M) Smt. Sahab Devi and another ..... Appellants

Versus

Kashmiri Lal and others ..... Respondents Date of decision: 29.05.2018

CORAM:

HON'BLE MR. JUSTICE RAMENDRA JAIN PRESENT: Ms. Vandana Malhotra, Advocate for the appellant-Insurance Co. (in FAO-10046-2014) and for respondent No. 3-Insurance Co. (in FAO-3374-2017). Mr. Navmohit Singh, Advocate for respondents No. 1 and 2 (in FAO-10046-2014) and for the appellant (in FAO-3374-2017).

Ms. Rajni Maurya, Advocate for Mr. Naveen Batra, Advocate for respondents No. 3 & 4 (in FAO-10046-2014) and for respondents No. 1 and 2 (in FAO-3374-2017). RAMENDRA JAIN, J. (ORAL) 1.

Through this common judgment, two above titled appeals i.e. one filed by the appellant-Insurance Company (FAO-10046-2014) for reduction, another by the widow and son of deceased-Fakir Chand (FAO3374-2017), for enhancement of compensation, against the impugned Award dated 09.09.2014, of the Motor Accident Claims Tribunal,

-2Kurukshetra (for short-'the Tribunal'), are being disposed of. For brevity, the facts are being extracted from FAO-10046-2014. 2.

In nutshell, on 04.09.2013, Fakir Chand, aged around 59 years died in a motor vehicular accident, while driving and striking his motorcycle bearing registration No. HR-49-9551, against a stationary truck bearing registration No. HP-12-D-4912, driven by respondent No. 3Kashmiri Lal, owned by respondent No. 4-Gurmeet Singh and insured by the appellant. The learned Tribunal, in a claim petition under Section 166 of the Motor Vehicles Act, 1988, awarded compensation to the tune of `6,21,800/- only to the widow of the deceased (respondent No. 1 herein) vide Award impugned herein, while dismissing the claim petition on behalf of respondent No. 2 herein being major son of the deceased. 3.

Learned counsel for the appellant-Insurance Company contends that claimant-respondent No. 2-Pawan Kumar (appellant No. 2 in connected appeal bearing FAO-3374-2017) being married son of deceased-Fakir Chand, was rightly not treated as dependent by the learned Tribunal. Only respondent No. 1-Sahab Devi, widow of deceased-Fakir Chand, was held entitled for the entire compensation aforesaid, as a sole dependent. Since, widow alone was declared as sole dependent, therefore, the learned Tribunal ought to have deducted 50% from the alleged income of the deceased, instead of 1/3rd towards his personal expenses. 4.

This Court finds force in the above submission of learned counsel for the appellant-Insurance Company, in view of the fact that in various authoritative pronouncements of Hon'ble the Apex Court and various High Courts, 1/3rd deduction has been held to be genuine towards personal expenses of the deceased, where there are 2 to 3 dependents upon a

-3deceased. In the instant case, only one person has been declared as dependent upon the deceased, therefore, it is a fit case where deduction of 50% should be applied towards personal expenses of the deceased from his alleged income.

5.

Relying upon a judgment of Hon'ble the Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017 (4) RCR (Civil) 1009, learned counsel for the appellant-Insurance Company contends that the learned Tribunal has wrongly added 15% to the income of the deceased towards future prospects, though the same could not have been added more than 10%. She further contends that the learned Tribunal has awarded `1,00,000/- and `25,000/-, respectively, towards loss of consortium and funeral expenses, which could not have been awarded beyond ` 40,000/- and `15,000/-, in view of the above referred judgment. However, she fairly conceded that respondent No. 1-widow-claimant is entitled to ` 15,000/- towards loss of estate which has not been granted by the learned Tribunal.

6.

Learned counsel for the appellant-Insurance Company, lastly contended that it was a case of contributory negligence, because deceased had struck his motorcycle behind a stationary truck in day light, inasmuch as, in the month of September, there is no complete dark by 7.00 PM and, thus, the deceased could see the stationary truck from a suitable distance, if, he would not have been driving his motorcycle in a rash and negligent manner.

7.

Having given considerable thought to the above submission of learned counsel for the appellant-Insurance Company, this Court finds no merit in the same in view of the fact that in the month of September, there is

-4complete dark by 7.00 PM. Even from a short distance, no object is visible around 7.00 PM. Thus, from any angle deceased-Fakir Chand, cannot be said to have contributed in the accident resulting into his own death. 8.

Both the sides are ad idem that this appeal has to be decided in accordance to the principles laid down in Pranay Sethi's case (supra). 9.

As per calculations 'Mark-A' furnished by learned counsel for the appellant-Insurance Company, the amount of compensation payable to respondent No. 1-widow-claimant, is liable to be reduced from `6,21,800/- to `4,26,400/-.

10.

Learned counsel for respondents No. 1 and 2 has not been able to point out any infirmity in the above calculations 'Mark-A'. 11.

Ordered accordingly.

12.

Consequently, the appeal filed by appellant-Insurance Company (FAO-10046-2014) is partly allowed, whereas appeal (FAO3374-2017) filed by appellant-claimants, is rejected. 13.

The appellant-Insurance Company, shall deposit the balance amount, if any, before the learned Tribunal along with interest @ 7.5 % per annum from the date of filing of claim petition till realization, which shall be disbursed to respondent No. 1-widow-claimant, in accordance with law against proper receipt and identification.

May 29, 2018 ( RAMENDRA JAIN ) rishu JUDGE Whether speaking/reasoned Yes/No Whether Reportable Yes/No