United India Insurance Company Limited, having its Regional Office, Sector 17, Chandigarh v. Ram Chander

Present: Mr.Sanjeev Pabbi, Advocate for the appellant. Mr. Arvind Bansal, Advocate for the respondents.

3. FAO No.1547 of 2006 Ramesh Chander son of Shri Bir Singh, resident of House No.2827, New Housing Board Colony, Jind, District Jind. Versus .........Appellant Ved Parkash son of Shri Bhalla Ram @ Bhalle Ram and others

4. FAO No.1548 of 2006 .......Respondents Bimla alias Bimla Devi wife of late Shri Jagbir alias Jugbir Singh son of Shri Bharat Ram and another Versus .........Appellants Ved Parkash son of Shri Bhalla Ram @ Bhalle Ram and others .......Respondents FAO No.375 of 2006 -2- Present: Mr. Arvind Bansal, Advocate for the appellants. None for the respondents No1. And 2. Mr. Sanjeev Pabbi, Advocate for respondent No.3. 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 an accident resulting in death of a person and injuries to another. The insurance company is in appeal challenging the liability both on the ground that the vehicle itself was not involved and on the ground that the driver did not have a valid driving licence. The representatives of the deceased and the injured have filed the respective appeals seeking for enhancement of compensation.

2. As regards the involvement of the vehicle in the accident, the contention was that there was a collision between the motor cycle and a jeep and the motor-cyclist was injured while the pillion rider died in the accident arising out of the collision. The accident had taken place on 09.06.2002 but the FIR was registered the following day on 10.06.2002. In the FIR, there had been no details of the vehicle as regards the registration number or the name of the driver. However, the statement is reported to have been given by a person, Surender Singh, who had given evidence in Court as PW-6 that even at the time when the accident took place, he was there as FAO No.375 of 2006 -3- an eye-witness and he had given the information to the police the following day and the police had carried out the investigation and challaned the driver of the vehicle for his involvement in rash and negligent driving. The Tribunal accepted the evidence given on the side of the claimants relating to the involvement of the insured's vehicle and found the driver to be rash and negligent. The learned counsel appearing for the insurer contends that it was most artificial that a person, who had witnessed the incident did not give the details to the police immediately and recalled the registration number belatedly to inform the police. This point was specifically urged and considered by the Tribunal by sifting the evidence adduced on both sides and reasoned that if the driver of the insured's vehicle was not involved at all, the driver ought to have given evidence regarding the same. The driver and the insured had been appearing through counsel and nothing is brought on record as to why they were not examined. If the owner chose not to examine himself or his driver, it was only to be expected that the insurer cites the driver as a witness and elicits the fact whether the vehicle was involved in the accident or not. This aspect was considered by the Tribunal to render a finding that the evidence of PW-6 must be given due weight and non-examination of the driver and the jeep must be taken as adverse to a plea in evidence that the vehicle was not involved in the accident at all. I find the reasoning to be appropriate and I make no interference with regard to that finding.

3. The other contention as regards the plea whether the driver did not have a valid driving licence, it was brought out in FAO No.375 of 2006 -4- evidence that the vehicle had been insured as B Policy for a passenger carrying vehicle under a category Maxi Cab but the Tribunal held that the driver, who held a driving licence for scooter, motor cycle and light motor vehicle must also be taken to be competent to drive a Maxi Cab. In my view, the finding is not correct for if it was insured as a commercial vehicle with authorization to carry passengers for hire, it meant that it was a transport vehicle and the driving licence must have carried an endorsement to drive a transport vehicle as laid down under Section 3 of the Motor Vehicles Act. The same has not done and therefore, there had been a breach of terms of policy. The finding to the contrary by the Tribunal is set aside and therefore, I hold that the insurer although is liable to satisfy the claim of the claimants, it shall have a right of recovery against the insured.

4. This brings us to issue of determining the compensation as fixed by the Tribunal. The case in FAO No.1547 of 2006 relates to claim for injury and FAO No.1548 of 2006 relates to claim for death. In FAO No.1547 of 2006, the claimant had given evidence to the effect that he had suffered three fractures involving fracture of shaft of femur and plate fixation. The doctor, who examined him gave evidence to the effect that the disability suffered by him was 15% and it was permanent. It was also in evidence that there had been an implant for reduction of fracture and for uniting the broken bones. There was in evidence proof of the fact that the injured had been in the hospital as a patient for 20 days. The Tribunal assessed Rs.25,000/- towards disability, Rs.15,000/- towards medical FAO No.375 of 2006 -5- expenses, Rs.5,000/- for pain and suffering and Rs.5,000/- for loss of earning capacity. The learned counsel urges that for a disability upto 15%, the compensation should have been Rs.30,000/-. It is also contended by him that the medical bills had been to the tune of Rs.13,870/- but the Tribunal had allowed for Rs.15,000/- including the special diet allowance. According to him, special diet must have been provided independently for Rs.5,000/-. He would also contend that for three fractures requiring a hospitalization of 20 days, the assessment of Rs.5,000/- on account of pain and suffering is grossly low. In my view, the award of the Tribunal would require to be modified upward in the following manner. For 15% disability, the assessment which is made at Rs.25,000/- could be Rs.30,000/-. The medical expenses are retained as Rs.15,000/- but for dietary expenses, I provide for an additional amount of Rs.5,000/-. For pain and suffering for three fractures, which the claimant had, I would assess for each fracture an amount of Rs.7500/- and offer to the claimant an amount of Rs.22,500/-, which is in addition of Rs.17,500/- to what had been already assessed by the Tribunal. The transportation charges had not been provided for which, I shall provide for another Rs.2500/-. In all, the claimant will be entitled to Rs.25,000/- in addition to what has been already determined by the Tribunal. This shall be borne by the insurer, who is the appellant in the connected appeal and will obtain the liberty to recover the same against the insured.

5. As regards the claim for death of the pillion rider, the deceased was a Constable working in the Department of Home FAO No.375 of 2006 -6- Affairs, Union of India drawing a salary of Rs.5684/-. The Tribunal found on evidence secured through a witness, who brought the salary register to show that his take home salary was Rs.3114/-. The Tribunal took the contribution to the family to be Rs.1550/-. The Tribunal deducted 1/3rd of the said amount and adopted a multiplier of Rs.16. The learned counsel states that the deceased was in a Government job with security of tenure and a definite prospect for promotions and increase in salary and as per the judgment of the Hon'ble Supreme Court in Sarla Verma Vs. Delhi Transport Corporation 2009(6) SCC 121, the Tribunal ought to have provided for an increase upto 50% for a person, who was aged less than 40 years.

6. The learned counsel would also contend that the take home salary worked out after some deductions but the salary certificate, which was produced before the Tribunal showed that he had a basic salary of around Rs.3100/- with dearness allowance and other allowances. His gross salary was Rs.5684/-. I take the said amount as the salary and providing for 50% increase, the amount will be Rs.8526/-. If 1/3rd were to be deducted for his personal consumption, the amount of contribution to the family must be taken to be Rs.5684/- per month. If a multiplier of 16 were to be adopted, amount payable would be Rs.10,91,328. The Tribunal has already provided for loss of consortium and loss to estate at Rs.5,000/- each. I do not seek to modify the said heads of claim. The amount of Rs.10,91,328 is rounded off as Rs.10,91,000/- and the amount in excess of Rs.3,94,000/- is Rs.6,97,000/-, which shall be FAO No.375 of 2006 -7- payable by the insurance company with right of recovery against the insured. The additional amount shall also bear the interest @7.5% from the date of the award of the Tribunal till the date of payment.

7. The amount shall be shared equally between the widow and the daughter. The amount shall be retained in the fixed deposit for the minor child during the minority and only interest accrual shall be made. This, however, shall be available for premature withdrawal for higher education expenses only. Even as regards the amount payable for the widow, the additional amount that I have determined and the amount that bears to her share, shall be kept in deposit for a term of 10 years, having regard to the fact that the deceased was aged 31 years and the petitioner shall have the benefit of withdrawal in 10 equated installments of Rs.1,00,000/- with accruing interest during the first year, another Rs.1,00,000/- with interest for the 2nd year and so on till the amount is finally exhausted on the 10th year.

8. The appeals by the insurance company are allowed in part to the extent of providing for a right of recovery and the appeals filed by the claimant and the representatives of the deceased are also allowed partly in the manner referred to above. There shall be, however, no direction as to costs. July 28, 2010 Pankaj* (K. KANNAN) JUDGE