New India Assurance Co Ltd v. Sarla And ORS
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) FAO No.7228 of 2015 (O&M) Date of Decision: January 07, 2019.
New India Assurance Company Limited ..........APPELLANT(s).
VERSUS
Sarla and others ........RESPONDENT(s).
(2) FAO No.7407 of 2015 (O&M) Sarla and others ..........APPELLANT(s).
VERSUS
Ajmeet Singh and others ........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present:
Mr. Suvir Dewan, Advocate for the appellant in FAO-7228-2015 and for respondent No.3 in FAO-7407-2015.
Mr. Ashok Jindal, Advocate for appellants in FAO-7407-2015 for respondent No.1 in FAO-7228-2015.
Mr. Anhad S. Miglani, Advocate for Mr. Abhilaksh Grover, Advocate (Court Guardian) for respondents No.2 to 4 in FAO-7228-2015.
Mr. Nitish Garg, Advocate for respondent No.4 in FAO-7407-2015 and for respondent No.7 in FAO-7228-2015.
******* SURINDER GUPTA, J.
The above captioned two appeals have been filed by New India
-2Assurance Company Limited and claimants Sarla and others against the award dated 02.07.2015. While the insurance company is challenging the quantum of compensation, the claimants are seeking its enhancement as per the law settled by Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi and others 2017(4) R.C.R. (Civil) 1009.
So far as the grant of compensation as per the law settled in above referred case is concerned, the same is not disputed by the learned counsel for the parties.
The tribunal allowed the compensation of `19,70,000/- to the claimants, which was computed as follows:- (i) Name of the deceased Prem Pandey (ii) Profession of deceased Driver (iii) Age of the deceased 38 years `12000 p.m.
(iv) Income of the deceased assessed by the tribunal on the basis of salary certificate Ex.C1 (v) Deduction towards personal expenses 1/3rd (in fact 1/4th deduction was taken) `12000-3000=`9000 p.m.
i.e. `108000 p.a.
(vi) Multiplier applied 15 `108000X15 = `1620000 (vii) Funeral expenses `25000 (viii) General damages `25000 (ix) Loss of estate `100000 (x) Loss of consortium `100000 (xi) Loss of love and affection `100000 Total `19,70,000/- Learned counsel for the insurance company has argued that the minimum wages for the skilled worker as on 01.03.2013 was `7,372/- per month. The accident took place on 27.02.2013, as such, the tribunal has committed error in assessing monthly income of the deceased as `12,000/- per month instead of taking minimum wages prescribed by the State of
-3Punjab for skilled workers.
Learned counsel for the claimants has argued that claimants proved on file salary certificate of the deceased as Ex.C1 as per which, the deceased was drawing a salary of `12,000/- per month at the time of accident.
In order to prove the income of the deceased, the claimants have examined owner of the vehicle, which the deceased was driving at the time of accident. He has stated in his affidavit that deceased was employed by him and he was paying him salary of `12000/- per month. He, however, could not produce any document regarding the employment or payment of salary to the deceased. The tribunal, while assessing income of the deceased, has observed that the driver could earn `12,000/- per month. However, it has not given any reason for making the above observation. The tribunal has also observed that "in this case, salary has been duly proved and when there have been no denial, income of the deceased is to be taken as admitted."
This observation of the tribunal is also without any basis as even in the cross-examination of CW1, he was asked to produce any document regarding the employment and salary of the deceased, which he could not produce and respondent insurance company has contested the plea of claimants qua monthly income of deceased. Though, no documentary evidence regarding employment and payment of salary to the deceased has come on record, still the testimony of CW1 Rakesh Kumar cannot be discarded to the effect that deceased was employed by him as driver.
-4vehicle as taxi, which signifies that insurance company is virtually admitting the employment of deceased as driver of CW1 Rakesh Kumar. In these circumstances, minimum wages prescribed by the State Government for the skilled workers cannot be taken as wages for assessing the income of the deceased, who was driver by profession. The accident had taken place in the year 2013 and keeping in view the facts, evidence on file and statement of Rakesh Kumar CW1, I am of the view that income of the deceased should be taken as `10,000/- per month. Learned counsel for the insurance company submits that under the conventional heads, the tribunal has allowed a compensation of `3,50,000/-, which is to be restricted to `70,000/- per month as per the law laid down by Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi and others (supra). His plea has not been contested by learned counsel for claimants.
In view of the above, the amount of compensation to which the claimants are entitled to, is reassessed as follows:- Sl.No.
Heads Calculation (i) Income of the deceased `10000 per month (ii) 40% of above (i) to be added as future prospects (`10000+`4000)= `14000 per month (iii) Deduction of 1/4th towards personal expenses of the deceased (`14000-`3500)= `10500 per month (iv) Compensation after multiplier of 15 is applied (`10500X12X15)= `1890000 (v) Loss of consortium `40000 (vi) Loss of estate `15000 (vii) Funeral expenses `15000 Total `19,60,000/- As a sequel of my above discussion, appeal filed by insurance
-5company (FAO-7228-2015) is partly allowed and appeal filed by the claimants (FAO-7407-2015) is dismissed. The amount of compensation awarded to the claimants is reduced from `19,70,000/- to `19,60,000/-. The insurance company is entitled to recover the excess amount, if already paid, from the claimants. Keeping in view facts and circumstances of the case, parties are left to bear their own costs.
( SURINDER GUPTA ) January 07, 2019.
JUDGE Sachin M.
Whether speaking/reasoned:
Yes/No Whether Reportable:
Yes/No