FAO No.4645 of 2010 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4645 of 2010 (O&M) Date of Decision: 16.05.2013 Suman wd/o Ranbir Singh & others
...Appellants
Versus Joga Singh s/o Sulkhan Singh & others
..Respondents
FAO No.3277 of 2011 (O&M) Sewa Singh s/o Mohinder Singh
...Appellant
Versus Suman wd/o Ranbir Singh & others
..Respondents
CORAM:HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ashwani Arora, Advocate for the appellants in FAO No. 4645 of 2010 Mr. Ramesh Sharma, Advocate for the appellant in FAO No. 3277 of 2011. Ms. Vandana Malhotra, Advocate for Insurance Company. K.KANNAN, J. (ORAL) 1.
The appeal in FAO 4645 of 2010 is for enhancement of
compensation claimed for death of a male, aged 36 years. The deceased was working
as Beldar in BBMB, Nangal Dam, and
drawing salary @ Rs.14,432/- per month. As regards the liability, while assessing compensation, the Tribunal found that the driver did not have valid driving licence and discarded the evidence given by the owner that he has caused the verification of the license to be made not as true version and consequently, found that there had been violation of terms and conditions of policy. The Insurance Company was therefore fully exonerated. The learned counsel appearing on behalf of the appellants seeks for reassessment of
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compensation in the light of judgement of Supreme Court in Sarla
Verma Versus Delhi Transport Corporation and another 2009(6) SCC 121 that mandates that the provisions for future increase in salary must also be provided. Learned counsel would also argue that the Tribunal's direction that the payment of interest to be effected only from the date of award, if the amount was not paid within the stipulated period is not appropriate. The counsel would also state that the Insurance Company could not have been exonerated even if there was violation of terms of the policy in terms of law laid down by Supreme Court in National Insurance Company Limited
Versus Swaran Singh (2004) 3 SCC 279. 2.
As regards
the salary, the learned counsel for the
Insurance Company points out the salary certificate produced before the Tribunal includes arrears of rent of DA @ Rs.2,045/and salary must have been taken taken Rs.12,087/-. I accept this contention and provide 50% for prospect of increase in salary and find monthly average income at Rs.18,518.50/-. There had been no income tax already as evident from the salary certificate and therefore, there shall also be no scope for deduction for tax. I will provide for 1/4th deduction for personal expenses and take the monthly dependency at Rs.13,935/- and apply multiplier of 15 to find the loss of dependency at Rs. 25,08,767.50/-. To this will be added Rs. 1 lac towards loss of consortium and Rs.1 lac for loss of supervision and guidance of the parent for the minor children and also another Rs.25,000/- for funeral expenses and provide for further sum of Rs.10,000 towards loss of estate. The total compensation would be Rs.27,43,767/-. 3.
As regards the liability, the learned counsel appearing on
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behalf of owner vehemently pleads that he had made bone fide enquiry of the licence produced by the driver and it had turned out that it was not genuine and he ought not to be found as having committed any breach of terms of policy. specifically dealt with by the Tribunal
This point has been
and it has been observed
that kind of enquiry that was necessary may not have compelled the owner to go to the DTO Office to make reference or verification. But if his own evidence was that on the production of the driving licence, he had it verified and if he was unable to say the person to whom the work was entrusted for verification and if he also did not know which was the office of issue of licence, then it must only be taken that the owner was not telling the truth. Consequently, the Tribunal reasoned that there had been no enquiry by the owner and he had been guilty of breach of terms of insurance by not employing a person who had valid driving licence to drive the vehicle. I will not find any defect in the view expressed by the Tribunal and confirm the same. However, in terms of law laid down in New India Assurance Company Limited Vs. Kamla and others-AIR 2001 SC 1419, the liability shall be on the Insurance Company in terms of Section 149 Clause 4 proviso and sub-clause 5 of the Motor Vehicles Act and the Insurance Company shall pay the same to the claimants and recover the same from the owner and driver. With this modification the appeal is allowed and Insurance Company will have a right of recovery after satisfying the award from the owner and driver. 4.
As the accident had taken place in the year 2008, I will
provide for multiplier of 15, considering the fact that widow was herself a young lady and there were two minor children at the time
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of accident of the deceased I would direct that as regard her share the 40% of the amount will be permitted to be withdrawn and remaining 60% of the amount to be split in 8 equal portions, first portion shall be invested for the period of one year, second portion for two year and so on up to eight years. The amount shall be paid to the widow on the respective dates of maturity. As regards the share of the minors the same shall be retained during the period of minority and on attaining majority 75% amount shall be permitted to be withdrawn and the remaining 25% shall be deposited for the period of 3 years and again the amount shall be split in three portions, first for period of one year, second for period of two years and third for period of three years. Interest on amount during the period of minority of the children shall be paid to the mother at quarterly intervals of a year for maintenance and support of the children. As regards the apportionment the same shall be in ratio 2:2:2:1 among the wife, children and mother of the deceased. As regards the share of mother the entire amount of compensation is ordered to be paid without any restriction of deposit.
The
additional amount of compensation as awarded will also attract interest @ 7.5%.
The direction already given by the Tribunal as
regards the interest shall also stand modified and it should be taken that the interest shall be payable on the original amount as awarded from the date of petition till the date of payment. 5.
The award stands modified and the appeal is allowed to
the above extent. 6.
The appeal filed by the owner bearing FAO NO.3277 of
2011 challenging the liability would require to be dismissed and accordingly dismissed.
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It has been a constant experience that in the manner of
deposits with Nationalised Bank the parties are still left to the mercy of Tribunal to process their claims. The Tribunals ought to device seamless procedures that allow for the claimants to receive the amounts without any intervention of the Court or any other agency. It shall be done by the Tribunals by engaging the chief functionaries of the banks that operate within their jurisdiction and ensure that the deposits are taken in the names of parties with the case numbers specified for identification of the claimants. There shall be standing instructions to banks that the deposits shall not be permitted to be prematurely closed without express direction of the Tribunal. The amounts that accrue by way of interest shall be paid to the parties directly by the Bank without reference to the Tribunal. The Bank however, shall periodically furnish statements of account to the Court giving out the details of transfer of amounts to the account holder, without violating the privacy of the account holder's operation of the accounts. The Tribunal shall allow access for direction if there is any difficulty expressed by the parties for realisation of the amount periodically. 8.
Copy of this judgement be circulated by e-mail by the
Registry to all Motor Accident Claims Tribunals within this Court's supervisory jurisdiction as suggestions for compliance.
(K.KANNAN) JUDGE 16.05.2013 aarti
