Punjab-Haryana High Court
The National Insurance Co.Ltd vs Sant Ram And Ors on 29 August, 2017
Author: Amit Rawal
Bench: Amit Rawal
FAO No.2477 of 2003 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
FAO No.2477 of 2003
Date of Decision.29.08.2017
The National Insurance Co. Ltd. ........Appellant
Vs
Sant Ram and others ........Respondents
2. FAO No.3834 of 2003
Sant Ram and another ........Appellants
Vs
Narinder Gulati and others ........Respondents
Present: Mr. V. Ramswaroop, Advocate
for the appellant in FAO No.2477 of 2003
and for respondent No.3 in FAO No.3834 of 2003.
Mr. Pardeep Sehrawat, Advocate for
Mr. Vivek Goyal, Advocate
for the appellants in FAO No.3834 of 2003 and
for respondent Nos.1 and 2 for FAO No.2477 of 2003.
CORAM:HON'BLE MR. JUSTICE AMIT RAWAL
-.-
AMIT RAWAL J.(ORAL)
This order of mine shall dispose of two appeals bearing Nos.2477 and 3834 of 2003. The former is at the instance of the insurance company challenging the liability and the latter is at the instance of the claimants seeking enhancement of compensation for death of the deceased namely Pawan Deep Sharma alias Pawan Kumar who unfortunately died in a motor vehicular accident occurred on 25.02.2001. He was aged 22 ½ years and working as a scooter mechanic.
Mr. Ramswaroop, learned counsel appearing on behalf of the appellant-insurance company in FAO No.2477 of 2003 submits that the Tribunal has erred in fastening the liability in the ratio of 50:50 upon the insurer of the truck and the car respectively whereas it is the driver of the 1 of 5 ::: Downloaded on - 09-09-2017 07:02:59 ::: FAO No.2477 of 2003 -2- car who was negligent and therefore, the liability ought to have fastened upon the insurer of the car, thus, urges this Court for modifying the award passed by the Tribunal by setting aside the finding in this regard.
Mr. Pardeep Sehrawat for Mr. Vivek Goyal, learned counsel appearing for the appellant in FAO No.3834 of 2003 submits that the Tribunal while assessing the compensation of `84,000/-, took the income of the deceased as `3000/- per month and applied a multiplier of 7 based upon the age of the parents whereas it should have been on the age of the deceased. Moreover, nothing has been provided under the head of loss of love and affection, loss of estate and funeral expenses, thus, urges this Court for enhancement of compensation.
On the contrary, learned counsel for the insurance company submits that it is conceded position on record that a truck bearing registration No.DL-1GA-9379 and maruti car bearing registration No.PB- 11B-9668 were involved in the accident and the manner and mode in which the accident had taken place is a pointer that there was no contributory negligence rather the driver of the maruti car was rash and negligent. The car was being used as a taxi and therefore, there is breach of terms and conditions of the insurance policy.
In rebuttal to the arguments of Mr. Ramswaroop, leaned counsel appearing for the appellants-claimants submits that PW-4 had categorically proved the accident by attributing the negligence towards the driver of the truck, therefore, there cannot be a case of contributory negligence at all.
I have heard learned counsel for the parties and appraised the paper book. The statement of PW-4 reads as under:-
2 of 5 ::: Downloaded on - 09-09-2017 07:03:00 ::: FAO No.2477 of 2003 -3- "Statement of Rakesh Kumar Sharma son of Jain Lal Sharma aged 21 years, Tea Vendor, resident of H.No.474, Kumharan Wala Mohalla, Rajpura.
On 25.2.2001 I along with Pawan Sharma, Surinder Kumar, Devki were coming from Shahabad Markanda side in Maruti car No.PB-11B-9668. When the said car reached near the police station Shahabad Markanda near GT Road, Near Maura Marri, one truck came from the side of Ambala which was driven in rash and negligent manner. The said truck was bearing No.DL1GA/9379 which was driven by Dario Singh, respondent No.2. On account of this accident I had received injuries and even my wife Pooja, Surinder my cousin had also received injuries. My grand mother Devki, also received injuries later on she died in PGI Chd. Pawandeep Sharma who was also the occupant of the car and was driving the car died at the spot on account of this accident. XXXXX by Sh. B.S. Sodhi.
I was a friend of Pawandeep. Five persons were sitting in Maruti Car. The car was owned by our neighbour Chota. I have not brought any document regarding the ownership of the car. I have not brought the driving licence of Pawandeep who is driven the car. Suridner was sitting on the other front of the car whereas the other occupants were sitting on the back seat. There is a divider in between the road. Traffic on both sides of the divider runs separately. Two vehicles can pass simultaneously on the metalled portion of the one side of the road. There is a kutcha burm of about 5 feet on each side. One side of the road was closed i.e. the on coming traffic was coming on the side on which the maruti car was going. There was no vehicle ahead of Maruti car. The accident took place on the metalled portion of the road between the car and the truck. The head on collusion took place between the maruti car and the truck. It is wrong to suggest that the accident took place due to the negligence of the car driver Sh. Pawandeep who was overtaking another truck and in the process of overtaking rashly he struck his car with the truck coming from the opposite direction. Pawandeep was driving the maruti car as a taxi. I do not know whether Pawandeep had a driving licence for driving car or not. Pawandeep was doing the work of repairing scooter and was not 3 of 5 ::: Downloaded on - 09-09-2017 07:03:00 ::: FAO No.2477 of 2003 -4- learning to drive a car. My marriage was to take place for which we have taken the maruti car. I do not know how much money was given for hiring the taxi i.e. maruti car in question as the same was given by my father. Pawandeep was not under the influence of liquor. It is wrong to suggest that Pawandeep was under the influence of liquor which he had consumed at the marriage party. It is wrong to suggest that the accident was caused due to rash and negligence driving of the car driver. It is wrong to suggest that Pawandeep was not doing the work of scooter mechanic and earning Rs.3000/- p.m. It is wrong to suggest that I have deposed falsely at the instance of the claimants.
RO&AC MACT/24.10.2002 In view of the cross-examination of PW-4, insurance company has not been able to establish the contributory negligence of the vehicle i.e. the maruti car of the insurance company. As regards the vehicle being used for commercial purpose in defiance to the terms and conditions of the insurance policy, no direct and cogent evidence has come on record, much less, any admission in the cross-examination that the car was being plied as a taxi i.e. any passenger had paid fare to the driver. In the absence of the same, the insurance company was unable to prove the grounds raised in the memorandum of appeal, therefore, I do not find any illegality and perversity.
As regards the quantum of compensation, I will take the income of the deceased as `3000/- per month, apply a deduction of 50% towards personal expenses and adopt a multiplier of 18 to assess the loss of dependency as `3,24,000/-. I will further add to it `50,000/- each on account of loss of love and affection, `10,000/- for loss of estate and `25,000/- for funeral expenses. In all, the compensation payable shall be `4,59,000/-. The amount in excess over what has already been provided by 4 of 5 ::: Downloaded on - 09-09-2017 07:03:00 ::: FAO No.2477 of 2003 -5- the Tribunal shall also attract interest @6% from the date of filing of the appeal till its realization. The enhanced amount shall be distributed equally between the claimants. The liability shall remain the same as has already been determined by the Tribunal.
Resultantly, the appeal filed by the insurance company in FAO No.2477 of 2003 is dismissed and the appeal filed by the appellants- claimants in FAO No.3834 of 2003 is allowed to the above extent.
(AMIT RAWAL)
JUDGE
August 29, 2017
Pankaj*
Whether reasoned/speaking Yes
Whether reportable No
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