United India Insurance Company Limited v. Reshma And Others

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH 123+207 Date of decision: 07.12.2021 XOBJC-93-2021 in/and FAO No.7053 of 2019 (O&M) UNITED INDIA INSURANCE COMPANY LIMITED ..Appellant

Versus

RESHMA AND OTHERS ..Respondents FAO No.6719 of 2019 (O&M) TATA AIG GENERAL INSURANCE COMPANY LIMITED ..Appellant

Versus

RESHMA AND OTHERS ..Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. Ashwani Talwar, Advocate with Mr. Varun Sharma, Advocate for the United India Insurance Co. Ltd.

Mr. Sanjeev Kodan, Advocate for TATA AIG Gen. Ins. Co. Ltd.

Mr. Rakesh K. Sharma, Advocate for respondent No.4 (FAO No.6719 of 2019).

Mr. Pawan Attri, Advocate for respondent No.4-Surjit Singh (FAO No.7053 of 2019). Mr. Ashit Malik, Advocate for respondent No.3(i)/cross objectors (FAO No.7053 of 2019) ***

 ANIL KSHETARPAL, J (Oral) This order shall dispose of FAO No.7053 and 6719 of 2019 and cross objections No.93 of 2021.

Three vehicles were involved in the accident. There were two tractors one of them bearing a registration No.HR-41-F-9237 which was allegedly insured with United India Insurance Co. Ltd. and the other tractor bearing registration No.HR-41-G-1062 allegedly insured with TATA AIG Gen. Ins. Co. Ltd. The third vehicle involved in the accident was a car bearing registration No.PB-02-BU-0024. The deceased was driving the aforesaid car. The correctness of the finding with regard to rash and negligent driving and apportionment of the responsibilities to pay compensation, is not being questioned by learned counsel for the parties. Thus, the findings of the Tribunal on these aspects are affirmed.

Learned counsel for the United India Insurance Co. Ltd. in FAO No.7053 of 2019, contends that the tractor No.HR-41-F-9237 was never insured with the appellant company. He draws the attention of the Court to paras 14 and 17 of the written statement disputing that the aforesaid tractor was insured by the Insurance Company. He further draws the attention of the Court to the application filed before the Tribunal, for deleting the name of United India Insurance Co. Ltd. and to direct respondent No.3 and 4 (driver and owner of tractor No.HR-41-F-9237) to produce the original insurance

 policy/cover note. He further draws the attention of the Court to the order dated 27.08.2018 passed by the Tribunal which reads as under:- "No PW is present or served. However, respondent No.4 filed an application for deleting his name or directing respondents No.1 to 3 to produce original insurance policy/cover note. Heard. In the light of application, respondent No.1 to 3 are directed to produce original insurance policy as earliest, failing which, an adverse inference may be drawn qua them at the time of adjudication of this claim petition. Accordingly, instant application stands disposed of. Adjourned to 21.09.2018 for entire claimant's evidence to be produced at own responsibility.

Sd/- (Dr. Sanjeev Arya) MACT, Jind, 27.08.2018 He further submits that the officer of the Insurance Company appeared in evidence and stated that no insurance policy has been purchased from the appellant company. He further draws attention of the Court to the statement of Ishwar Singh the alleged driver of tractor No.HR-41-F-9237 to contend that no evidence to prove the insurance policy was produced. It may be noted here that only a photocopy of the insurance policy was produced by the driver and the owner of tractor No.HR-41-F-9237 but thereafter they did not make any attempt to prove the same. In fact, at the time of arguments, the contention of learned counsel representing the United India Insurance Co. Ltd. were not disputed by the learned counsel for the respondents.

In view of the aforesaid position, the Tribunal has erred in ordering recovery of 50% of the compensation from the United India

 Insurance Co. Ltd. The Tribunal has overlooked the order passed on 04.08.2018. In a case where the owner and driver of tractor No.HR-41-F9237 failed to produce the original or certified copy of the insurance policy, the Tribunal should have drawn an adverse inference against them. Consequently, the appeal filed by the United India Insurance Co. Ltd. is allowed. The finding of the Tribunal against them is set aside. FAO No.6719 of 2019 has been filed by TATA AIG Gen. Ins. Co. Ltd., the insurance company of tractor No.HR-41-G-1062. Learned counsel for the appellant contends that the Tribunal has erred in assessing the income of the deceased @ Rs.10,200/- per month on the basis of minimum wages fixed by the Deputy Commissioner of the District.

He submits that the Tribunal is required to assess the income on the basis of minimum wages notified under the Minimum Wages Act. In the considered opinion of this Court, there is no hard and fast rule in that matter. The Tribunal has assessed the minimum income on the basis of minimum wages notified by the Deputy Commissioner of the District. The accident took place on 25.11.2015. A young man aged about 27 years, 10 months, 24 days lost his precious life. He was a resident of District Kurukshetra. Therefore, the Tribunal has not committed any error in relying upon the order passed by the Deputy Commissioner, notifying about the minimum wages. Hence, there is no substance in the appeal (FAO No.

 2019) filed by TATA AIG Gen. Ins. Co. Ltd. and is dismissed. The cross objections have been filed by the claimants with a prayer to modify the award passed by the Tribunal. Learned counsel submits that there are three claimants namely widow of the deceased and his aged parents. The learned counsel while relying upon the judgment passed in Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram and others, 2018(4) RCR (Civil) 333 which has been reiterated by a Larger Bench in New India Assurance Co. Ltd. vs. Somwati and others, Civil Appeal No.3093 of 2020, decided on 07.09.2020 submits that the parents are also entitled to the filial consortium @ Rs.40,000/- each. On the other hand, learned counsel for the Insurance Company contends that in view of the judgment passed by 5 Judge Bench in National Insurance Company Limited Vs.

Pranay Sethi and Ors., 2017 SCC 1270, the maximum amount under the head of consortium can only be Rs.40,000/-. On careful reading of the judgments passed in Magma General Insurance Co. Ltd. (supra) and Somwati and others (supra), it is evident that the judgment passed in Pranay Sethi and Ors. (supra) has been discussed.

Hence, the parents are also held entitled to a filial consortium @ Rs.40,000/- each. Thus, there is an increase of Rs.80,000/- in the compensation awarded by the Tribunal.

 Accordingly, the cross objections are allowed. Learned counsel for the claimants contends that the Insurance Company should be made liable to pay the amount and thereafter recover the amount from the other tort feasers. It may be noted here that neither the United India Insurance Co. Ltd. nor the TATA AIG Gen. Ins. Co. Ltd. has any privity of contract with the owner and driver of tractor No.HR-41-F9237. As a result, TATA AIG Gen. Ins. Co. Ltd. cannot be made liable to pay the amount and then recover from the owner/driver. As a result, 50% of the compensation shall be payable by jointly and severally by Ishwar Singh and Jaswinder Singh whereas the remaining 50% shall be payable by TATA AIG Gen. Ins. Co. Ltd.

All the pending miscellaneous application(s), if any, are also disposed of.

07.12.2021 (ANIL KSHETARPAL) ashok JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No