United India Insurance Company Limited v. Smt. Thakri Devi & Ors.

Smt. Sunita Juneja and others ...Respondents IV. FAO No.2130 of 1996 Smt. Sunita Juneja and others ....Appellants versus Ram Chander and others ...Respondents FAO No.2131 of 1996 V. Smt. Thakri Devi ....Appellant versus Ram Chander and others ...Respondents FAO No.1835 of 1996 - 2 - VI. FAO No.2132 of 1996 Yashpal Juneja ....Appellant versus Ram Chander and others ...Respondents VII. FAO No.2507 of 1996 Smt. Thakri Devi and others ....Appellants versus Ram Chander and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Paul S. Saini, Advocate, for the appellant in FAO Nos.1835 to 1837 of 1996 and for respondent No.3 in 2130, 2131, 2132 and 2507 of 1996. Mr.Mahipal Singh, Advocate, for Mr.Ashish Kapoor, Advocate, for other respondents in FAO Nos.1835 to 1837 of 1996. Mr.Mahipal Singh, Advocate, for Mr.Ashish Kapoor, Advocate, for the appellants in 2130, 2131, 2132 and 2507 of 1996. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral)

1. In all these batch of seven cases, three appeals in FAO Nos.1835 to 1837 of 1996 are by the Insurance Company challenging liability, while the remaining four appeals have been filed for FAO No.1835 of 1996 - 3 - enhancement of compensation for death, injuries and damage to the vehicle respectively.

2. The contention of the learned counsel for the insurer is that the accident arose out of a collision between a car in which the claimants were travelling with a Tata Canter, which was a goods vehicle belonging to the insured. The contention is that the Tribunal found both the vehicles to be negligent but however did not apportion the liability and directed the entire amount to be paid only by the insurer of the goods vehicle. The learned counsel submits that even the owner and the insurer of the car had not been made as a party and, therefore, the claim petitions were not tenable.

3. It is an admitted case that the persons, who had filed the claim petition, were all passengers in the car and they were third parties to the policy of insurance. It is a well laid down proposition that a third party could maintain an action against anyone of the tort feasors and recover the whole amount and leaving it to one of the tort feasors to obtain contribution from the other. A claim cannot fail by the only fact that the owner of the car had not been made as a party. In a case where the Court has held that both the vehicles were responsible for the accident and the drivers of both the vehicles had been negligent, it should have apportioned the liability. The learned counsel for the insurer refers to a decision of this Court in Narinderpal Singh Versus Punjab State through Secretary Transport, Punjab Government, Chandigarh and others-1989 ACJ 708, to illustrate the above proposition. I have no difficulty in holding that the driver of the car is liable in equal measure FAO No.1835 of 1996 - 4 - to the driver of the insurer's goods vehicle. The liability shall be apportioned as 50:50 between the owner/insurer of the car and the owner/insurer of the Tata Canter.

4. This apportionment shall still not operate to affect the right of the claimants to recover the entire amount against the insurer, for, I have already held that a third party is entitled to maintain a petition for compensation against anyone of the joint tort feasors. Consequently, all the awards made by the Tribunal are upheld subject however to the modification that the appellant shall be entitled to recover 50% of the amount of liability secured under the awards as modified by this Court by independent proceedings. Snce the owner/insurer of the car is not a party, the right shall only be enforced by an independent action and the cause of action for such a recovery will be taken to be the date when this judgment is given and the liability is apportioned. All the appeals filed by the Insurance Company in FAO Nos.1835 to 1837 of 1996 are disposed of with the modification and confirming the liability of the insurer to make the payments to the claimants initially.

5. As regards the four appeals which are filed by the claimants for enhancement, the appeal in FAO No.2507 of 1996 is for compensation arising out of the death of a passenger Duli Chand. He was said to be a person working in Handloom House, Panipat and his income was stated to be Rs.3,500. The Tribunal took the income to be Rs.3,000/- provided for a deduction of 1/3rd for personal expenses, adopted a multiplier of 16 and ascertained a compensation of Rs.3,84,000/-. The learned counsel for the claimants states that in terms FAO No.1835 of 1996 - 5 - of the judgment of the Hon'ble Supreme Court in Sarla Verma, where it was held that when the dependents were more than four, the provision for personal expenses must have been taken as 1/4th of the amount and not 1/3rd as done by the Tribunal. However, in my view, it will not make a difference for the Tribunal as already adopted a multiplier of 16 for a person, who was aged 52 years, which is at the higher side and increased contribution to the family that the learned counsel pleads for, will be more than offset by the decrease in the multiplier which would be appropriate to this case. Under the circumstances, I do not think that there is any justification for seeking any enhancement. The award passed already for the death of Duli Chand is just in FAO No.2507 of 1996 and is dismissed.

6. As regards the claim for enhancement for injuries suffered by a person by name Thakri Devi, widow of Duli Chand referred to above, it was in evidence that she had a prolonged hospitalization of more than 50 days and she had also undergone a surgery for reduction and fixation of fractures. A doctor, who treated the claimant was also examined as PW-10, who certified the disability to be permanent and that she had suffered 40% for deformity of her knee joint. The Tribunal had fixed Rs.50,000/- as compensation for permanent disability and Rs.50,000/- for medical expenses against the bills which total to Rs.33,450. The Tribunal however did not provide for any compensation for pain and sufferings. The amount of Rs.50,000/- was stated to be a composite amount for disability as well as for pain and sufferings. In my view, for a person, who had a prolonged hospitalization of more than 50 FAO No.1835 of 1996 - 6 - days, the Tribunal ought to have provided for adequate compensation under an independent head. The Tribunal has also not determined any compensation for expenses for attendants and transport. I will provide Rs.20,000/- for pain and suffering and additional Rs.5,000/- for transport and expenses for attendants. I also provide another Rs.5,000/- for dietary expenses for treatment as in patient. In all, this will amount to additional amount of Rs.30,000/- over the amount of Rs.1 lakh already determined by the Tribunal. This additional amount shall bear interest at 7.5% from the date of the award of the Tribunal till the date of the payment. The Insurance Company pleads that it will be prepared to pay that the liability for an insurer may be fixed on a contingency if the amount is not paid. The case is of the year 1996 and, therefore, I will provide for another Rs.10,000/- towards the interest component. In all therefore the additional amount that will become payable will be Rs.40,000/- if the amount is paid within six weeks from the date of the receipt of the copy of the award and if the amount is not paid, this will attract interest at

7.5% from the date of this order. The appeal in FAO No.2131 of 1996 is therefore partly allowed modifying the award passed in the manner referred to above.

7. In FAO No.2130 of 1996, the claim is for enhancement for death of a person by name Sham Sunder Juneja. The deceased was 35 years of age and was stated to be a businessman, paying income tax. The net income after payment of tax through the document produced before the Court showed that he was earning Rs.57,480/-. The challenge to the quantum while seeking enhancement is that the Tribunal has provided FAO No.1835 of 1996 - 7 - for 1/3rd deduction in a case where the number of dependents were 5. Following Sarla Verma, I would hold the appropriate deduction would have been only 1/4th and the net contribution to the family must therefore be taken as Rs.43,110/-. The same multiplier as has been applied by the Tribunal is taken and the amount that shall become payable shall be Rs.6,89,760/-. Over this amount, I shall provide for Rs.10,000/- for loss of consortium and Rs.5,000/- for loss of love and affection for each of the minor children and Rs.5,000/- for loss to estate and funeral expenses. In all, the amount shall be Rs.7,04,760/-. The Tribunal has already provided Rs.6,20,000/- and the amount in excess that shall become payable shall be Rs.84,760/-. To the claimants, I will add interest component of Rs.16,000 and odd and round if off to Rs.1 lakh as payable in addition. If the amount is not paid within six weeks from the date of the receipt of the copy of the award, this amount will attract interest at

7.5% from the date of the award of this Court. The appeal is party allowed with the modifications referred to above.

8. The appeal in FAO No.2132 of 1996 relates to the claim for damages for the car. It was in evidence through the estimate of the surveyor that the damage to the car had been to tune of Rs.1,23,514.50 but the Court rounded if off to Rs.1,20,000/- and cast the liability of the insurer to the extent of Rs.6,000/- as a damage payable for the third party property damage. The restriction of liability of Rs.6,000/- accords with law and the remaining amount of Rs.54,000/- (after apportioning 50% of liability to the owner of the car) shall be borne the first respondent, who is the owner of the vehicle. The appeal challenging the quantum is, FAO No.1835 of 1996 - 8 - therefore, dismissed but is is modified in the manner provided with specific direction for the entitlement of the appellant to claim the balance of Rs.54,000/- against the first respondent.

9. All the appeals by the insurer and the claimants are disposed of as above.

30.07.2010 sanjeev (K.KANNAN) JUDGE