Punjab-Haryana High Court
United India Insurance Co. Ltd vs Chhailu And Others on 19 February, 2014
FAO No.3729 of 2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision : 19.02.2014
1) F.A.O. No.3729 of 2006 (O&M)
United India Insurance Co. Ltd. ...... Appellant
versus
Chhailu and others ...... Respondents
2) F.A.O. No.5204 of 2006 (O&M)
Chhailu and another ...... Appellants
versus
Ashok Kumar and another ...... Respondents
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. V. Ramswaroop, Advocate
for the appellant (in FAO No.3729 of 2006)
for the respondent No.2 (in FAO No.5204 of 2006)
Mr. B.K. Baggi, Advocate
for the appellants (in FAO No.5204 of 2006)
for the respondents No.1 and 2 (in FAO No.3729 of 2006)
***
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?
Sharma Ashish
2014.03.19 12:51
I attest to the accuracy and
integrity of this document
Chandigarh
FAO No.3729 of 2006 (O&M) -2-
AJAY TEWARI, J. (Oral)
These are two appeals arising out of the common award. One appeal has been filed by the insurance company against the award dated 04.05.2006 awarding compensation of Rs.1,74,000/- along with interest @ 7.5% on account of death of Rajbir, aged 23 years. Another appeal has been filed by the claimants for the enhancement of compensation. These appeals are disposed of by the common order. For the sake of convenience the facts are being taken from FAO No.3729 of 2006.
Brief facts are that Rajbir died on 19.01.2004 in a motor vehicle accident, which took place on 11.01.2004. He left behind his parents. The Tribunal assessed the income of the deceased as Rs.2400/- and fixed the dependency at Rs.1600/- p.m. by applying the deduction of 1/3rd . The Tribunal further applied the multiplier of 8 and award Rs.10,000/- towards funeral expenses and Rs.10,000/- towards treatment expenses.
The case of the insurance company-appellant is that on the date of the accident there was no insurance policy. The facts are that the cover note was executed on 09.01.2004 and the cheque was also handed over on 09.01.2004. Admittedly the validity of the cover note was from 09.01.2004 to 08.01.2005. The cheque was actually encashed on 14.01.2004.
In my opinion, the mere fact that the cheque was encashed on 14.01.2004 will not lead to the conclusion that the policy came into effect after the encashment of the cheque. Once the cover note executed by the insurance company itself the date of the insurance policy was from 09.01.2004 to 08.01.2005. The same would be held to be applicable unless Sharma Ashish 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh FAO No.3729 of 2006 (O&M) -3- the cheque bounced in which case the contract would have become non-est. In the present circumstances, I can not subscribe to the view that there was no insurance policy on the date of the accident.
Consequently, the appeal filed by the insurance Company bearing FAO No.3729 of 2006 is dismissed.
As regards the appeal for enhancement of compensation, the learned counsel for the respondents No.1 and 2 has argued that the deceased was 23 years old and the student of B.A. and had already passed B.A.-Ist year.
Learned counsel for the appellant-insurance company has argued that in our country it is not certain that a person who has done B.A.- Ist year would even got a job and consequently considering the same income of an unskilled labourer cannot be termed to be unfair.
In my opinion, it would be most appropriate if in the present case the minimum wages of a semi-skilled worker is taken. Admittedly, in the year 2004 the minimum wages for a semi-skilled worker was Rs.2740/-. Consequently, I take his income as Rs.2740/- p.m. Learned counsel for the respondent Nos.1 and 2-claimants has further argued that multiplier of 18 has to be applied as per the age of the deceased and has relied upon Sarla Verma and others v. Delhi Transport Corporation and another, 2009 ACJ 1298.
Learned counsel for the respondents No.1 and 2 has further argued that under conventional heads only an amount of Rs.10,000/- has been awarded and has relied upon the decision of the Hon'ble Supreme Sharma Ashish 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh FAO No.3729 of 2006 (O&M) -4- Court in Vimal Kanwar and others vs. Kishore Dan and others, (2013-3) PLR 776.
Keeping in view the entire conspectus of facts, I award `1 lac to the respondent No.2-mother on account of loss of love and affection. I further hold that multiplier of 15 has to be applied instead of 8 in view of the observations made by this Court in F.A.O. No.5181 of 2010, titled as Nanak Singh and another vs. State of Punjab and another, decided on 17.01.2014. I further award `10,000/- more towards funeral expenses and transportation. It is made clear that all the enhanced amount shall be paid along with the same rate of interest as awarded by the Tribunal from the date of filing of the claim petition till the date of realization. Apart from the individual amount awarded, apportionment and management of the compensation would be as per the direction of the Tribunal.
Learned counsel for the respondents No.1 and 2 has further argued that the future prospects has also to be added in the income. He has relied upon two Single Bench judgments in Chander Pati and another vs Jitender Kumar and others, 2013(4) PLR 290 and Jai Parkash alias Parkash and another vs Mohammad Yusuf and others, 2013(1) PLR 772, to contend that this Court had awarded 50% for future prospects in Chander Pati and another' case (supra), and 30% for future prospects in Jai Parkash alias Parkash and another' case (supra).
Learned counsel for the appellant-
Insurance Company has argued that in a case where there is some established income, future prospects may be granted but where the income Sharma Ashish 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh FAO No.3729 of 2006 (O&M) -5- is entirely notional, there would be no occasion to grant future prospects. He has further argued that deduction of 1/2 has to be applied and has relied upon the judgment in case Rekha Rani and another v. Ranjit Singh and another, 2013(3) R.C.R. (Civil) 770.
Learned counsel for the respondents No.1 and 2 has countered by arguing that if this premise is correct and no future prospects can be granted because the income is notional, then by the same logic no deduction can be allowed on notional income.
I find that this question cannot be decided in motion hearing and consequently, this appeal bearing FAO No.5204 of 2006 deserves to be admitted, and in view of difference of opinion which has surfaced after the decision in Rekha Rani and another' case (supra) on the one hand, and Chander Pati and another' case (supra) and Jai Parkash alias Parkash and another' case (supra) on the other, the matter is referred to the Division Bench.
The question now arises as to whether any amount should be paid to the respondents No.1 and 2-claimants at this stage when they require it most for their livelihood. In my opinion, subject to the decision of the larger bench it would be appropriate to immediately grant to the respondents No.1 & 2-claimants atleast the compensation now computed after making the deduction of 50% as canvassed by the learned counsel for the respondents No.1 & 2-claimants.
Registry is directed to place this matter before Hon'ble the Chief Justice to constitute a Bench. It is requested that in view of the fact Sharma Ashish 2014.03.19 12:51 I attest to the accuracy and integrity of this document Chandigarh FAO No.3729 of 2006 (O&M) -6- that this Court is endeavouring to decide long pending MACT cases expeditiously, Bench may be constituted as early as possible.
A photocopy of this order be placed on a file of the connected case.
( AJAY TEWARI )
February 19, 2014 JUDGE
ashish
Sharma Ashish
2014.03.19 12:51
I attest to the accuracy and
integrity of this document
Chandigarh