Oriental Insurance Company Ltd v. Gurjit Singh And ORS

2023:PHHC:045050 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-7215-2017 (O&M) Date of decision: 27.03.2023 The Oriental Insurance Co. Ltd.

...Appellant(s) Vs.

Gurjit Singh & Others

...Respondent(s)

CORAM:

HON'BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. R.C. Gupta, Advocate for the appellant.

Mr. Achin Gupta, Advocate for respondents No.1 & 2. Mr. Varun Dhawan, Advocate for respondent No.4. *** NIDHI GUPTA, J.

Present appeal has been filed by the Insurance Company assailing award dated 06.07.2017 passed by Motor Accident Claims Tribunal, Faridkot (hereina2er referred to as "the learned Tribunal") in MACT Case No.35 dated 31.05.2016 filed under Sec9on 166 read with Sec9on 140 of the Motor Vehicles Act, 1988 (hereina2er referred to as "the Act"). Claimants/respondents No.1 and 2 herein, are the husband and minor son of deceased-Sarabjit Kaur. Vide the impugned Award, the Learned Tribunal awarded compensa9on of Rs.18,05,300/- to the claimants/respondents No.1 and 2 along with interest @ 6% per annum from the date of filing the pe99on 9ll realisa9on. 2.

Learned Tribunal on the basis of pleadings and evidence adduced before it concluded that deceased-Sarabjit Kaur had died due to injuries suffered by her in a motor vehicular accident that took place on 10.05.2016 due to rash and negligent driving of truck bearing registra9on No.PB-05V-9854 (hereina2er referred to as "the offending vehicle") being driven by respondent No.3, owned by respondent No.4 and insured by the appellant. Respondents were held jointly and severally liable to pay the amount of compensa9on. 3.

Learned counsel for the appellant submits:

a) that though no evidence was led by the claimants, yet, the learned Tribunal held the deceased to be a qualified MSC and MCA Teacher who worked as a Computer Teacher in Chenab Group of Educa9on, Quilla Road, Kotkapura and was drawing a salary of Rs.14,000/- per month. Learned counsel

2023:PHHC:045050 2 submits that thus, learned Tribunal had incorrectly taken income of the deceased as Rs.14,000/- per month;

b) that as per post mortem report (Exhibit P11), age of the deceased had been taken as 40 years at the 9me of accident; c) that claimants being two in number, learned Tribunal made deduc9on of 1/3rd towards personal expenses. It is submiIed that however, claimant/respondent No.1/husband of the deceased had remarried on 21.10.2016 i.e. barely six months a2er the death of deceased and therefore, he could no longer be considered as dependent on the deceased and deduc9on of 50% ought to have been made towards personal expenses. It is submiIed that this fact was duly placed before the learned Tribunal however, the learned Tribunal had not considered this aspect of the maIer. In support of this conten9on, learned counsel relies upon judgment of High Court of Delhi in MAC. APP.721/2013 decided on 21.01.2015 tled as "The Oriental Insurance Co. Ltd. VS. Sh. Mukesh Kumar & Others";

d) it is further, very fairly submiIed by learned counsel for the appellant-Insurance Company, that claimants are en9tled to addi9on towards future prospects @ 40%; and even other amounts under conven9onal heads have not been granted by the learned Tribunal as per law. 4.

In response, learned counsel for claimants/respondents No.1 and 2 submits:

a) that sufficient cogent evidence had been placed on record by the appellants regarding the employment and income of the deceased. As such, there was no error on part of the Tribunal in taking income of the deceased as Rs. 14,000/- per month;

b) that there can be no dispu9ng the fact that claimant No.1/husband of the deceased, had admiIed in his cross-examina9on that he has remarried. It is submiIed that however, claimant No.1 had taken a Panchaya9 divorce from his second wife on 08.04.2017, which is prior to passing of Award on 06.07.2017, and therefore, deduc9on of 50% be not made towards personal expenses;

2023:PHHC:045050 3 c) that nothing has been granted to the claimants/respondents No.1 and 2 towards future prospects. It is also submiIed that even amounts granted under miscellaneous heads are not in accordance with law laid down by Hon'ble Supreme Court in Na7onal Insurance Company Limited Vs. Pranay Sethi and Others (2017) 16 SCC 680.

5.

No other argument is raised on behalf of the par9es. 6.

I have heard learned counsel for the par9es.

7.

Perusal of record of the case shows that claimants had placed on record PG Diploma Cer9ficate of the deceased as Ex.P-1; copy of Master of Science Cer9ficate as Ex.P-2; Detailed Marks Cards of Master of Computer Applica9ons issued by the Punjab Technical University as Ex.P-3 to Ex.P-7; Detailed Marks Cards of BA Part I, II, and III as Ex.P-8 to Ex.P-10; Copies of aIendance register as Ex.P-13; Copies of entries of Salary Register as Ex.P-14. Besides this, the claimants had also examined PW3 Baljit Singh Kheewa, Proprietor of Chenab Group of Educa9on, Quilla Road, Kotkapura who deposed that the deceased was employed as a teacher in their ins9tu9on since 08.01.2016, and was drawing a salary of Rs.14,000/- per month. AdmiIedly, no evidence in rebuIal was led by the appellant Insurance Company. Accordingly, I find no error in the assessment made by the learned Tribunal of salary/income of the deceased being Rs.14,000/- per month.

8.

Date of accident in the present case is 10.05.2016. It is admiIed fact on record that claimant/respondent No.1 had remarried therea2er on 21.10.2016. In view of the said undisputed fact on record, in my view, deduc9on of 50% ought to have been made towards personal expenses as admiIedly, claimant/respondent No.1 could no longer be considered to be dependent on the deceased. In this regard, reference may be made to judgment of High Court of Delhi in case of Mukesh Kumar (supra) cited by learned counsel for the appellant/Insurance Company wherein it has been held as follows:- "34. To sum up, the loss of dependency on account of gratuitous services rendered by a housewife shall be:- .......

2023:PHHC:045050 4 (vi) If a housewife dies issueless, the contribu#on towards the gratuitous services is much less, as there are greater chances of the husband's remarriage. In such cases, the loss of dependency shall be 50% of the income as per the qualificaton stated in (i), (ii) and (iii) above and addi#on and deduc#on thereon as per (iv) and (v) above...." 9.

Though it has been stated by learned counsel for the respondent-claimants that claimant no. 1 had taken Panchaya9 divorce from his second wife, however, there is nothing on record to suggest that second marriage of claimant/respondent No.1 has ended in divorce. Even otherwise, admiIedly, at best only a Panchaya9 divorce has been taken. Moreover, claimant No.1 did not prove the validity of the alleged Panchaya9 divorce in accordance with law. Accordingly, deduc9on of 50% shall be made towards personal expenses in accordance with law.

10.

Further, although this is not an appeal filed by the claimants, an addi9on of 40% is to be made towards future prospects in accordance with law laid down by Hon'ble Supreme Court in Pranay Sethi (supra). 11.

It is also relevant to note that vide order dated 15.01.2018, this Court had directed that en9re amount of compensa9on be deposited in the name of minor son of the deceased in the shape of FDR before the learned Tribunal. This Court had issued abovesaid direc9on in view of Division Bench judgment of the Madhya Pradesh High Court in Anju Mukhi & Another Vs. Sash Kumar Bhaa & Others 1998 ACJ 400, wherein the surviving spouse-wife therein was held not en9tled to compensa9on a2er her remarriage. In the present case too, the claimant husband, as in the relied upon case, remarried a2er 6 months of death of the deceased-wife. Though in the present case, it has been submiIed by claimant/respondent No.1 that he was dependent on the deceased, however, respondent No.1 led no evidence in this behalf to prove his alleged dependency on the deceased, even otherwise, said statement of the respondent No.1 does not inspire belief as it is unlikely that he can enter into second marriage, if he is unable to support second wife. Learned counsel for the claimants/respondents

2023:PHHC:045050 5 No.1 and 2 is unable to dispute the above stated legal posi9on in case of Anju Mukhi (supra), nor has shown anything to the contrary. 12.

Accordingly, in the present case, as dependency of the respondent No.1 is not proved, and in accordance with judgment in case of Anju Mukhi (supra) it is directed that the en9re amount of compensa9on, including enhanced compensa9on, shall be held in an FDR with the learned Tribunal, to be released to the claimant No.2/minor son of the deceased-Sarabjit Kaur, when he aIains majority.

13.

In view of the above discussion, compensa9on is re-worked as follows:- HEADS MACT RE-WORKED Income Rs.14,000/- per month Rs.14,000/- per month Future prospects NIL 40% (Rs.5,600/-) Total Income Rs. 14,000/- Rs.14,000/- + Rs.5,600/- = Rs.19,600/- Deduc9on 1/3rd = Rs. 9,335/- 50% = Rs.9,800/- Annual dependency Rs. 1,12,020/- Rs.9,800/- x 12 = Rs.1,17,600/- Mul9plier Total annual dependency Rs.16,80,300/- Rs.17,64,000/- Loss of Estate NIL Rs. 15,000/- Funeral Expenses Rs. 25,000/- Rs. 15,000/- Parental Consor9um to Claimant/ R. no. 2 NIL Rs. 44,000/- Spousal Consor9um Rs. 1 lac NIL Total Rs.18,05,300/- Rs.18,38,000/- Enhanced by Rs.32,700/- 14.

Rate of interest shall remain the same as determined by the learned Tribunal. Present appeal stands disposed of accordingly. 15.

Pending applica9on(s) if any also stand(s) disposed of. 27.03.2023 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned: Yes/No Whether reportable:

Yes/No