National Insurance Company Ltd v. Smt. Kanta Rani & Ors.

Smt. Gurmit Kaur widow of Gurdip Singh son of Puran Singh and others ......Respondents

4. FAO No.4304 of 2002 Smt. Gurmit Kaur widow of Gurdip Singh son of Puran Singh and others ......Appellants Versus Lachman Singh son of Amar Singh resident of Rampura, P.O. Doraha, Punjab State Tubewell Corporation and others Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the Insurance Company. Mr. S.K. Singla, Advocate for the appellants-claimant in FAO No.1576 of 2002. Mr. M.K. Garg, Advocate for the appellants-claimants in FAO No.4304 of 2002. FAO No.1434 of 2002 -2- CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. All the four appeals arise out of same accident that resulted in death of two persons Neeraj Kumar and Gurdip. The subject matter in FAO No.1434 and 1576 of 2002 advert to the claim relating to the death of Neeraj Kumar and FAO Nos.4477 and 4304 of 2002 advert to a claim for compensation for death of Gurdip.

2. As far as the insurance company is concerned, the appeals are in the nature of clarification that the Tribunal, consistent with the finding that the driver did not have a valid driving licence, while providing for a right of recovery against the insured after satisfying the claimants, has made reference to such right in independent proceedings. The learned counsel appearing for the insurance company would urge that the insurance company shall be provided with a right of recovery in execution proceedings in the same case. I clarify and accede to the request and would hold that the insurance company is entitled to recover the amounts, which the claimants are entitled to from the insured after satisfying the respective awards through execution proceedings.

3. The cases therefore hinge on the respective entitlement of the claimants in all these cases. As regards the claim arising out of death of Neeraj Kumar, the deceased was aged 27 years and was said to be engaged in business of dry cleaning. The evidence let in FAO No.1434 of 2002 -3- was that the deceased was contributing Rs.6,000/- per month for expenses to the family from the income from the business. The claimants were the mother, widow and two minor children. The Tribunal took the income to be Rs.1800/- provided for a monthly dependence of family to Rs.1200/-, adopted a multiplier of 18 and determined compensation of Rs.2,59,200/- as compensation payable. The learned counsel appearing for the claimants would contend that there had been witness examined to show that he used to give his own clothes for dry cleaning and the cash receipts were also filed in Tribunal to give evidence with reference to his income. The documents does not help in any way except to say that he was running a business. The learned counsel would want me to conjecture as to what he would have earned and he would submit that it could not have been possible for any one to run a family of five persons in an urban area having any income less than Rs.5,000/-. I am afraid, I cannot give in to such an emotive appeal. In the year 1999, even income above Rs.5,000/- was taxable and if he was not an income tax assessee, I would only take the income to be less than the taxable limit and take that to be Rs.3,000/- per month as determined already be the Tribunal. He had four dependents and I would provide for a deduction of 1/4th for personal expenses and take the contribution to the family at Rs.2250/- per month. The annual dependency, I would take it to be Rs.27,000/-. I will adopt a multiplier of 17 and take the loss of dependency at Rs.4,59,000/-. I will add Rs.5,000/- each for loss of consortium to wife and provide for an equal sum of Rs.5,000/- each for loss of love FAO No.1434 of 2002 -4- and affection to each one of the children. I would also provide for Rs.2500/- towards funeral expenses and Rs.5,000/- for loss to estate. The total amount that will become payable, would be Rs.4,81,500/-. The amount determined as excess over what has already been awarded by the Tribunal will carry interest @6% from the date of the petition till the date of payment.

4. The manner of apportionment of the award as determined by the Tribunal shall continue. Having regard to the accident took place in the year 1999, I would allow for withdrawal upto 75% and direct the retention of the 15% for all except the share of the mother of the deceased. The amount shall be kept in 5 equated moieties. First moiety for a period of one year, second moiety for two years and so on for a period of five years. The amount shall be paid on completion of periods of maturity of the deposits.

5. The appeals in FAO Nos.1434 and 1576 of 2002 are disposed of as above.

6. As regards the FAO Nos.4477 and 4304 of 2002 concerning the death of Gurdip, the direction given in the connected case is to enure to the benefit of the insurer to satisfy the claim of the claimants and recover the same against the insured. The appeal survives for consideration for the compensation for death of Gurdip Singh, who was said to have been working as a Personnel Manager in Nestle India Limited. The evidence was adduced to prove that he was drawing a salary of Rs.12,678/-. He was aged 43 years and the claimants were widow, three minor children and mother. If 30% increased is made, it would work out to Rs.3803.40 and the average FAO No.1434 of 2002 -5- salary shall be taken to be Rs.16481.40. I will take that to be Rs.16,500/- and apply a deduction of 1/5th. The extent of dependence per month on a average would work out to Rs.13200/-. The annual dependency would be Rs.1,58,400/- and I would reduce Rs.8400/- as tax payable and take the yearly dependence at Rs.1,50,000/- after deduction of tax. I would adopt a multiplier of 14 as already taken by the Tribunal and the amount that will become payable would be Rs.21,00,000/-. I will add towards the conventional heads of claim for loss of consortium and loss of love and affection for three minor children an additional amount of Rs.15000/- and provide for another Rs.10,000/- towards loss to estate and funeral expenses. The amount that will become payable would be Rs.21,25,000/- and the amount in excess of what has already been determined shall attract interest @6% from the date of the petition till the date of payment.

6. The increased amount shall go only to the widow and the minor children. The amount determined as payable to the mother shall be retained and shall not obtain any increase by the enhancement which I have made. The mother shall be entitled to recovery of her share in full but as far as the remaining amounts are concerned, the same shall be distributed amongst the widow and minor children. All the major claimants shall be entitled to withdraw upto 75% and the balance of 25% shall be kept in 5 equated moieties. First moiety shall be for a period of one year, second moiety for two years and so on for a period of five years. The amount shall be paid on completion of period of maturity of the FAO No.1434 of 2002 -6- deposits.

7. The appeal in FAO No.4477 of 2002 filed by the insurance company is allowed to provide for a right of recovery and the appeal in FAO No.4304 of 2002 by the claimants is also allowed to the above extent. October 07, 2010 Pankaj* (K. KANNAN) JUDGE