The Oriental Insurance Company Limited v. Harjinder Singh & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Naveen Kapoor, Advocate, for the Insurance Company. Mr. Deepak Suri, Advocate with Mr. Neeraj Khanna, Advocate, for the claimants.

1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No

2. 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.

1. This batch of 12 cases are at the instance of the claimants seeking for enhancement of compensation for death, F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -4- injuries and damage to property caused in the accident. The one appeal by the Insurance Company is as regards the limitation of liability for damage to the property. This batch of cases arise out of case where there had been 3 injury cases, 7 death cases, 1 case for claim for damages to jeep and 1 cross appeal by the Insurance Company. The cases are taken in the manner they were presented before this Court. The issue of negligence and the liability of the Insurance Company as governed by a contract of Insurance are admitted. Therefore, the details of the accident are not given and the cases have taken up and discussed as regards the quantum.

2. F.A.O.No. 597 of 2001 relates to a claim for compensation for injuries sustained in the accident which was a subject matter in MACT Case NO. 32 of 1996. The injured person was Harcharan Singh who was a retired person drawing his pension. In the accident, he had lost his wife and son. The claim filed by him for death of his son namely Mansukhjeet Singh who was aged 24 years is in FAO NO. 1177 of 2001 which was the subject matter in MACT No. 35 of 1996 and the claim filed by him relating to the death of his wife namely Daljeet Kaur aged 56 years is in FAO No. 603 of 2001 which was the subject matter in MACT No. 39 of 1996.

3. To examine the case of injuries for Harcharan Singh i.e. FAO NO. 597 of 2001, it was in evidence that he had lost vision in one eye and the doctor certified the disability to be F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -5- 33%. There was an Orthopedic injury as well, which was a fracture of the right arm to which the disability was assessed as 5%. Before the Tribunal the evidence was that he was undertaking treatment for nearly a month and produced bills in proof of the medical expenses to the tune of Rs. 59,120/-. The Tribunal fixed Rs. 55,000/- for disability and awarded him a compensation of Rs. 1,14,120/-. It must be noticed that the claimant was himself retired and therefore, injury by a loss of vision could not mean any loss of earning for him. The case would require to be examined only for non pecuniary damages of pain and suffering and loss of amenities in life besides actual expenses incurred under the relevant heads provided under Motor Vehicles Act. He had undergone a month long hospitalisation and would therefore, provide for attendant charges of Rs. 5,000/- for extra diet, I provide another Rs. 5,000/- for loss of pain and suffering, I would provide to him Rs. 25,000/- and for loss of amenities of life I would provide for another Rs. 25,000/-. In all total, the amount that could be claimed for loss of eye sight shall be Rs. 60,000/-plus what the Tribunal has already granted towards entire medical expenses at Rs. 59,120/-. This would mean Rs. 1,19,120/- which is only an addition of Rs. 5,000/- to what has already been awarded by the Tribunal. The additional amount will also carry interest @ 6% from the date of the petition till the date of payment.

4. As regards his claim for compensation for death of his F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -6- son which is the subject of appeal in FAO NO. 1177 of 2001, the deceased was a bachelor aged 24 years. The evidence was that he was having a spare part shop and his income was Rs. 5,000/-. The Tribunal took the extent of dependency for the father to his son at Rs. 1,000/- and adopted a multiplier of 8 taking into account the age of the father. The amount claimed was Rs. 10,00,000/- but the Tribunal awarded Rs. 1,00,000/-. This accident caused not merely personal injuries but took away his wife and son also. The loss was truly phenomenal for a person in the twilight years of his life when he had himself a privation of loss of one eye. With the dispensation in Sarla Verma Vs. Delhi Transport Corporation and another (2009) 6 SCC 121, there is a judicial shift to homogenize the awards and I would therefore, taking income of the deceased as Rs. 3,000/- per month and provide for a contribution to the father at 50%. The monthly contribution I would therefore, take as Rs. 15,00/- and take the annual dependency Rs. 18,000/-. I would adopt a multiplier of 18 and take the compensation payable as Rs. 3,24,000/-. I would also add the conventional heads of claim a further sum of Rs. 10,000/- and provide the total compensation to be Rs. 3,34,000/-. The sum in excess of what has already been awarded by the Tribunal shall carry interest @ 6% from the date of the petition till the date of payment.

5. FAO No. 603 of 2001 is the claim filed by Harcharan F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -7- Singh for the death of his wife namely Daljeet Kaur. She was a householder and was aged 56 years. In a recent judgment of the Hon'ble Supreme Court in Arun Kumar Aggarwal vs. National Insurance Company (2010) R.A.J. 262, where contribution of householder to a family was perceived as very important and suggested to the parliament to bring about a law quantifying the services of a wife to the family. In National Insurance Company vs. Minor Divya(2009) 6 MLJ 1005, the case Madras High Court took the wife's contribution to be 50% of the husband's earning. I will adopt the value of the services of the wife at Rs. 3,000/- per month provide 50% for her own expenses and take Rs. 1,500/- as contribution to her husband. The extent of contribution to the husband shall be Rs. 18,000/- and for a person who was aged 56 years I would adopt a multiplier of 8 and take the compensation payable as Rs. 1,44,000/-. I would again add another Rs. 10,000/- towards conventional heads of claim and determine the amount payable to the appellant is Rs. 1,54,000/-.

6. Harcharan Singh has also filed appeal i.e. FAO No. 1181 of 2001 for the death of his own father aged 72 years which was the subject of MACT Case No. 41 of 1996. Against a claim of Rs. 2,00,000/- the Tribunal has awarded Rs. 64,000/-. It is not too clear from the evidence whether the deceased was himself dependent or whether he was receiving any sustenance from his son. A father's presence is invaluable and the Tribunal F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -8- had already provided Rs. 64,000/- as compensation. The Tribunal rejected the claim for the grand daughter. The amount of compensation granted Rs. 64,000/- for the death of the father who was a senior citizen seems just and I would make no addition to the said award. The appeal i.e. FAO NO. 1181 of 2001 is consequently dismissed and I affirm the decision of the Tribunal.

7. The claimant in FAO NO. 1178 of 2001 had suffered injuries with frontal laceration with brain edema which was the subject of MACT Case No.33 of 1996. She had filed document to show that she had been admitted in the hospital from 18.05.1996 to 27.05.1996 against a claim of Rs. 5,00,000/-. The Tribunal had awarded Rs. 21,260/- towards medical expenses for the permanent disability. The Tribunal took another Rs. 25,000/- as compensation for injury. If I must undertake the exercise of reappraisal for the compensation given, I would retain the medical expenses as awarded and would take compensation of Rs. 25,000/- for pain and suffering, for head injury must have been resulted in enormous pain. Having regard to her period of hospitalization I would provide for attendant and transportation charges at Rs. 5,000/-. She does not appear to have any permanent disability and it is not also brought through evidence that the injury had any long term effect to reduce the longetivity of her life and prospects of marriage. This would only mean an addition of Rs. 25,000/- as payable for compensation which shall F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -9- attract interest @6% from the date of the petition till the date of the payment.

8. The claimant Kamalpreet Singh in F.A.O NO. 1182 of 2001 was a boy who was aged 10 years and the injuries suffered by him was a case of fracture of right ribs 3rd to 7th with Emphysema with a fracture of the right humerus which was the subject of MACT NO. 36 of 1996. He had been admitted in the hospital from 18.05.1996 to 25.05.1996 and given treatment at Ram Saran Das Kishori Lal Charitable Trust, Amritsar. There was no specific medical evidence brought on record to speak about ay permanent disability. Against a claim of Rs. 1,00,000/- the Tribunal awarded Rs. 8,390/- for medical expenses and provided for injuries to the tune of Rs. 25,000/- and in all an amount of Rs. 33,390/- had been awarded. I would retain the medical expenses as already provided and provide for Rs. 7,500/- for every fracture. He had five of his ribs fractured and the fracture of the one humerus bone. I would enhance the compensation for pain and suffering at Rs. 45,000/- at the rate above mentioned and would take a further sum of Rs. 5,000/- towards transport and special diet and attendant's charges. This would result in an additional amount of Rs. 25,000/-, which shall attract interest @ 6% per annum from the date of the accident till the date of the payment.

9. In the same accident, he had lost his father, mother and brother. A claim by him relating to death of his father Mohan F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -10- Singh in FAO No. 1180 of 2001 which was a subject of MACT NO. 37 of 1996, he was said to be associated in cloth business and as a transporter. Against a claim of Rs. 20,00,000/- on the basis that the father was earning Rs. 10,000/- per month the Tribunal took the income to be Rs. 3,000/- and adopted a multiplier of 15. I would take the income to be Rs. 5,000/- per month and take the contribution to the boy to the extent of dependence Rs. 1,500/-. I would adopt a multiplier of 15 as provided in Schedule II which would yield a Rs. 2,70,000/-. I would provide for an additional amount of Rs. 10,000/- for loss of love and affection and provide for an additional sum of Rs. 20,000/- under the other conventional heads. This amount will become Rs. 3,00,000/- which in my view is just compensation for a young boy who has to live of his life fending for himself having lost his parents and brother.

10. His appeal for death of his mother i.e. FAO NO. 1179 of 2001 which was a subject of MACT No. 40 of 1996. The mother was house holder and was aged 36 years. The boy would have required all the support and affection of the mother for his years of growing up and against the claim of Rs. 2,00,000/- the Tribunal had awarded Rs. 1,48,000/-. I would award compensation as claimed by him as reasonable and provide for Rs. 2,00,000/- as compensation. The sum in excess of Rs. 1,48,000/- will carry interest @6% from the date of the petition till the date of the payment. F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -11-

11. His appeal for death of his brother i.e. FAO NO. 602 of 2001 which was a subject of MACT Case No. 38 of 1996. The deceased was an elder brother of the claimant and the Tribunal has awarded against the claim of Rs. 2,00,000/- an amount of Rs. 94,000/-. Since he has already been compensated for the death of his mother and father, the compensation cannot be awarded to him for any dependence on his brother, when he has been taken as dependent on his parents. The amount already awarded by the Tribunal to the extent of Rs. 94,000/- is retained and consequently FAO NO. 602 of 2001 is dismissed.

12. The claimant Mela Ram in FAO NO. 601 of 2001 is at the instance of the husband of the deceased Inder Kaur which was a subject of MACT Case No. 42 of 1996. Against a claim of Rs. 2,00,000/- the Tribunal had awarded Rs. 1,24,000/-. The deceased was householder. Although it was averred in the petition that she was earning by doing embroideray and stitching, I take the value of her services to be Rs. 3,000/- per month and take the contribution towards her husband at 50% of the same. She was 50 years of age and I would take the multiplier of 11 and this will result in an amount of Rs. 1,98,000/- . I would provide for an additional amount of Rs. 12,000/- towards conventional heads of claim for loss of consortium and funeral expenses etc. I round it off to Rs. 2,10,000/-. The sum in excess of what has already been awarded by the Tribunal shall carry interest @ 6% from the date of the petition till the date of F.A.O. No. 2197 OF 2000, F.A.O. No. 597 of 2001, F.A.O. No. 601 to 604 of 2001 and F.A.O. No. 1177 to 1182 of 2001 -12- payment.

13. The damage to property in FAO NO. 604 of 2001 which was the subject in MACT Case No. 34 of 1996 has resulted in two appeals, one for enhancement and another at the instance of the Insurance Company seeking for restriction for liability has been subject matter of FAO NO. 2197 of 2000. The Tribunal has already awarded the compensation at Rs. 1,00,000/- for damage to the Jeep. The Insurance Company would contend that the liability cannot extend to more than the statutory limit provided as Rs. 6,000/- for damage to a third party claim. The award passed in excess of Rs. 6,000/- shall be borne by the owner of the insured's truck. The appeal for enhancement filed i.e. FAO No. 604 of 2001 is dismissed and the appeal by the insurer in FAO NO. 2197 of 2000 is allowed restricting the insurer's liability as Rs. 6,000/- with interest mentioned above as provided already in the award, however, making the owner liable for the amount found in excess over the said amount. All the appeals are disposed of as above. 9th September, 2010 Shivani Kaushik [K.KANNAN] JUDGE