Punjab-Haryana High Court
Oriental Insurance Company Limited vs Mohinder Kaur Wife Of Late Shri Varjit ... on 4 May, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.656 of 2009 (O&M)
Date of decision: 04.05.2013
Oriental Insurance Company Limited, through its Regional
Manager, SCO No.109-111, Sector 17-D, Chandigarh.
...Appellant
versus
Mohinder Kaur wife of late Shri Varjit Singh, resident of House
No.924, Sector 37-C, Chandigarh, and others.
....Respondents
II. FAO No.1768 of 2009 (O&M)
Mohinder Kaur wife of late Shri Varjit Singh, resident of House
No.924, Sector 37-C, Chandigarh, and others.
...Appellants
versus
Vikram Aggarwal son of Shri Viney Bhushan Aggarwal, resident of
House No.52, Sector 28-A, Chandigarh, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. Jagjit Singh, Advocate,
for Mr. Ashwani Talwar, Advocate,
for the Insurance Company.
Mr. L.M. Suri, Senior Advocate,
with Mr. Neeraj Khanna, Advocate,
for the respondents in FAO No.656 of 2009.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No.
3. Whether the judgment should be reported in the digest ?No.
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FAO No.656 of 2009 (O&M) -2-
K.Kannan, J. (Oral)
1. The appeal in FAO No.656 of 2009 is by the Insurance Company while the appeal in FAO No.1768 of 2009 is by the claimants, the former contending that the amount awarded is excessive and the latter seeking for further enhancement.
2. It appears that initially the claim was prosecuted for injuries by the claimant himself for the accident that took place on 05.05.2002. An award had been passed at `11,82,868/- but on the date of the award, the claimant had already died. The legal representatives therefore preferred the appeal in this Court which directed the Tribunal to consider the claim as a claim for death and also taken note of the objection by the Insurance Company to examine whether the death was due to the accident. The Tribunal found that the death that had resulted two years later was on account of accident injury and proceeded to determine compensation taking the income to be `1 lakh, provided for a 1/3rd deduction and assessed the loss of dependency at `10,04,000/-. The Court also provided the entire extent of medical bills and assessed `1 lakh for pain and suffering and included attendant charges as well to arrive at a total compensation of `18,50,868/-, rounded off to ` 18,51,000/-.
3. In the appeal filed by the Insurance Company, it is contended that in the initial assessment made by the Tribunal, the income taken was only `40,000/- but the Tribunal was in error in FAO No.656 of 2009 (O&M) -3- enhancing the compensation to `1 lakh in the subsequent rendering. The learned senior counsel for the claimants would support the finding of the Tribunal by pointing out that he was doing business and he was an income tax assessee and the assessment made for the income prior to the accident, namely, for the assessment year 2002- 2003, was `1,00,375/- and consequently, the assessment made was appropriate. The counsel in his plea for seeking enhancement would point out that the Court had provided for 1/3rd deduction when there were 5 claimants, who were dependents, and as per the judgment in Sarla Verma Versus Delhi Transport Corporation and another 2009(6) SCC 121, the deduction should have been only 1/4th and not 1/3rd.
4. As regards the multiplier to be applied, the Tribunal had taken the age of the deceased at 44 and applied a multiplier of 15. The counsel for the Insurance Company would submit that considering the fact that he was born in 1959 and that he died in 2004, the multiplier adopted must be only with reference to the date of death and the proper multiplier must have been only 13 as per the decision in Sarla Verma (supra). The learned senior counsel for the claimants would, on the other hand, contend that since he had been rendered totally immobile and the assessment of loss of dependency is made invariably on the contribution to the family, the fact that he was injured in the accident in 2002 and he could not earn his living FAO No.656 of 2009 (O&M) -4- must be duly factored and the application of the multiplier at 15 cannot therefore be faulty.
5. In a normal situation, it shall be only the year of death that shall be relevant for determination of multiplier. However, in this case, with evidence available that the deceased could not earn and he had been under treatment for fairly a long period till he died, I will take that he was aged between 41-45 years at the relevant time of accident and would take the multiplier at 14 as suggested by the decision in Sarla Verma (supra). I will also uphold the reliance made by the Tribunal on the income tax returns and take the income at `1 lakh provide for a deduction of 1/4th and apply a multiplier of 14 that will throw an amount of `10,50,000/- as the amount towards loss of dependency. The Tribunal has provided the entire amount of medical bills for `6,88,000/-. It has provided `1 lakh for pain and suffering. If the compensation were to be assessed for death as having resulted from the accident, the original assessment made for pain and suffering during the time when the claimant was alive, cannot any longer survive in terms of Section 306 of the Indian Succession Act. When the award was set aside with a claim for injury previously, then it must only be taken that amount was not a component of damage to the estate and it was only a personal injury. Consequently, the provision for 1 lakh made by the Tribunal was erroneous and would require to be set aside. At the same time, the FAO No.656 of 2009 (O&M) -5- learned counsel argues that the Tribunal has not properly provided for attendant charges and transport expenses. According to him, he had visited more than 16 times from his residence to the hospital. Even assuming that he had spent `2,000/- for every visit and even the attendant charges must have been more than what was claimed. I would believe that the additional amount that could be provided could still be absorbed in `1 lakh which was assessed by the Tribunal wrongly for pain and suffering. I will refashion it as an additional claim possible for attendant charges and for transportation. The Tribunal has provided for ` 5,000/- towards loss to consortium. I will provide for loss of love and affection each one of the children at `5,000/- and find the loss of consortium and loss of love and affection at `20,000/-. The overall compensation would not be more than what was already provided by the Tribunal. Both the appeals are dismissed.
(K.KANNAN) JUDGE 04.05.2013 sanjeev