Punjab-Haryana High Court
Date Of Decision: November 25Th vs Karam Chand And Others on 25 November, 2013
F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. F.A.O. No. 763 of 2010 [O&M]
Date of Decision: November 25th, 2013
Sh. Ajay Kumar Singal and another
.... Appellants
Versus
Karam Chand and others
.... Respondents
2. F.A.O. No. 2450 of 2010 [O&M]
Date of Decision: November 25th, 2013
ICICI Lombard General Insurance Co. Ltd.
.. Appellant
Versus
Sh. Ajay Kumar Singal and others
.... Respondents
3. F.A.O. No. 2505 of 2010 [O&M]
Date of Decision: November 25th, 2013
Arun Kumar Singal and another
.... Appellants
Versus
Karam Chand and others
.... Respondents
4. F.A.O. No. 3003 of 2010 [O&M]
Date of Decision: November 25th, 2013
ICICI Lombard General Insurance Co. Ltd.
.. Appellant
Versus
Arun Kumar Singal and others
.. Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Prakash Som
2013.11.29 11:29
I attest to the accuracy and
integrity of this document
F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 2
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Present Mr. Ajay Kansal, Advocate,
for the claimants-appellants.
Ms. Hem Lata Balhara, AAG, Haryana,
for respondents No. 2 and 3 - State of Haryana.
Mr. Rajesh Malhotra, Advocate,
for respondent No.4-Insurance Company.
VIJENDER SINGH MALIK, J.
Out of the above mentioned four appeals, FAO No. 2450 and 3003 of 2010 have been brought by ICICI Lombard General Insurance Co. Ltd. and the other two, that is, FAO No. 763 of 2010 and 2505 of 2010 have been brought by the claimants.
In a vehicular accident that took place on 28.6.2007, Shikhar and Manoj alias Manni alias Ashutosh were hit when they were riding a scooter bearing registration No.HR-31B-6185. They met with an accident with a Haryana Roadways bus bearing registration No.HR-56- 0559. While Shikhar and Manoj alias Manni alias Ashutosh died in the aforesaid accident, the scooter was also damaged. As a consequence thereof, claim petition No. 26 of 2009 was brought by Ajay Kumar Singal for compensation on account of the damage suffered by the scooter. Claim petition No. 27 of 2009 was brought by Ajay Kumar Singal and his wife Smt. Renu Singal for compensation on account of death of their son, Shikhar and claim petition No. 28 of 2009 was brought by Arun Kumar Singal and his wife Smt. Anita on account of death of their son, Manoj alias Manni alias Ashutosh. Since appeal has not been filed in the claim petition brought for compensation for the damage suffered by the scooter, the facts with regard to that are not necessary to be noticed. Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 3
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Ajay Kumar Singal and his wife have sought compensation in a sum of ` 15 lakhs for the death of their son Shikhar claiming that their son was 15 years of age at the time of his death and was a student of tenth standard. He was a brilliant student and was involving himself in other activities. He was a boy of extra ordinary intelligence and his future was very bright. The claimants have suffered a great mental shock on account of death of Shikhar. Renu, claimant No.2 has come under permanent depression and has not been able to come out of the same. She is getting treatment from a Psychiatrist at Rohtak.
Arun Kumar Singal and his wife who have brought a claim petition on the death of Manoj alias Manni alias Ashutosh seek compensation in a sum of `15 lakhs. They claimed that Manoj alias Manni alias Ashutosh was 15 years of age and was an intelligent student of 10th class in D.A.V. School, Jind. According to them, a sum of ` 2 lakhs was spent on his treatment. A sum of ` 10,000/- has been spent on transportation of the dead body and a sum of ` 25,000/- is claimed to have spent on the last rites of the deceased. They have also claimed to have suffered a great loss in the death of their son.
The respondents have resisted the claim petitions. They have claimed that the two boys were coming in a rash and negligent manner driving a scooter at a very high speed and that they had struck the scooter with the divider on the road and had fallen down and then the scooter was struck by the bus. According to them, the other lane of the road was closed due to sewerage work. It is denied that the accident occurred due to the fault of the driver of the bus. The other averments of Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 4 ..
the claimants have been denied and the claimants are denied to deserve any amount as compensation.
Learned Motor Accidents Claims Tribunal, Jind [for short, "the Tribunal"] has assessed compensation vide a common award dated 8.8.2009. He has allowed a sum of ` 4,10,000/- as compensation to the claimants, Ajay Kumar Singal and his wife, the parents of deceased Shikhar in claim petition No. 27 of 2009 which they were ordered to share in equal. A sum of ` 4,50,000/- has been allowed as compensation to the parents of deceased Manoj alias Manni alias Ashutosh in claim petition No. 28 of 2009 which was also ordered to be shared by them in equal.
The Insurance Company has challenged the award on two points. The first point as per learned counsel for the insurer is that the deceased were minor and they were riding a scooter without possessing any driving licence. According to him, they were 15 years old and they were not authorized to drive a scooter and, therefore, the driving of the scooter by them was contrary to the provisions of the Motor Vehicles Act, 1988 [for short "the Act"]. He has submitted that in this way, they were themselves proved to be negligent in driving the scooter and, therefore, there is no liability accruing against the driver, owner and insurer of the bus involved in the accident. The second point on which the award has been challenged by the insurer is that the deceased were non-earning persons and their notional income should have been taken as `15,000/- per annum as per the second schedule appended to the Act. According to him, learned Tribunal has adopted the multiplier of 15. He has submitted that the fathers of the deceased have been 50 years old and Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 5 ..
the multiplier should have been less than that.
Learned counsel for the claimants has submitted, on the other hand, that learned Tribunal has taken the notional income of the deceased, Shikhar as `24,000/- in view of the decision of Hon`ble Supreme Court of India in Lata Wadhwa Vs. State of Bihar 2001 (4) RCR © 673. According to him, the notional income in case of other deceased has even been taken at `20,000/- per annum and that it should have been `24,000/- per annum itself. According to him, nothing has been awarded in the name of expenses on the last rites of the deceased in the two cases.
It is true that the deceased had been young boys of the age of 15 years. What to talk of their possessing driving licences, they were not even authorized by law to possess one. However, the question that arises here is as to whether a driver of a motorcycle having no licence would be deemed to be negligent in driving the vehicle irrespective of the ground facts. In my opinion, the answer to this question can never be in affirmative. The negligence is a question of fact and from the facts proved on the record, it has to be inferred as to who had been negligent and so, responsible for causing the accident. There is statement of Yogesh Kumar [PW-7] who is an eye-witness of the occurrence. His deposition clearly shows that the accident has been an outcome of rash and negligent driving of bus by respondent No.1. Karam Chand, respondent No.1 has appeared as RW-1 and has tried to make a statement in his defence. However, he admits that he is facing a criminal case for causing the accident in question. In his statement, he could not say that one lane of the road was closed due to sewerage Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 6 ..
work. Even the conductor of the bus was not examined. Learned Tribunal has taken pains in analysing the evidence to come to the conclusion that it was the rash and negligent driving of the bus by respondent No.1 which is responsible for the accident. The finding of learned Tribunal is based on the evidence appearing on the record. The minority of the deceased or absence of driving licences with them is not the cause of the accident. Therefore, the accident can only be said to be an outcome of rash and negligent driving of bus bearing No.HR-56-0559 by Karam Chand, respondent No.1.
In the second schedule appended to the Act, the notional income of `15,000/- is mentioned for a non-earning person. This schedule would apply to a claim petition brought under section 163-A of the Act and not to the one brought under section 166 of the Act. Learned Tribunal has placed reliance on a decision of Hon`ble Supreme Court of India in Lata Wadhwa's case [supra], where the minor children have been placed in two groups, one of children in the age group of 5 to 10 years and the other in the age group of 11 to 15 years. In that decision, Hon`ble Supreme Court of India has taken the notional income of the children in the second age group at `24,000/- per month. Learned Tribunal took this amount as notional income of the deceased.
Although the deceased were non earning persons, the prospect of their earning in future is to be taken into consideration to allow a claim for compensation. In Lata Wadhwa's case [supra] the accident occurred on 3.3.1989 and the notional income was assessed as on that date. In the case in hand, the notional income has to be assessed on 28.6.2007 when the accident had occurred. There is a gap Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 7 ..
of 18 years and, therefore, the notional income higher than `24,000/- could also have been justified in this case.
Learned counsel for the claimants has insisted for taking the notional income in case of death of Manoj alias Ashutosh at `24,000/- per annum itself. The distinction in notional income has been created by learned Tribunal taking into account the brilliance of the two deceased. In my opinion, there is not much difference in their brilliance and notional income in both the cases should have been taken as `24,000/- per annum. At least it can be said that the notional income in this case could not be assessed as `15,000/- per month as is claimed by learned counsel for the insurer.
The multiplier of 15 is the most suitable multiplier in this case. It has been held by Hon`ble Supreme Court of India in Reshma Kumari and others Vs. Madan Mohan and another 2013 (2) RCR (Civil) 660 that in cases where the age of the deceased is upto 15 years, irrespective of section 166 or section 163-A of the Act under which the claim for compensation has been made, multiplier of 15 has to be adopted. In view of this authoritative pronouncement of Apex Court, the multiplier of 15 adopted by learned Tribunal is beyond challenge.
Learned Tribunal has assessed a sum of ` 3,60,000/- in favour of Ajay Kumar Singal and his wife as the amount lost by them in the death of Shikhar to which a sum of ` 50,000/- has been added for mental pain and suffering on account of loss of company of their child. Learned Tribunal has not assessed even a single penny towards loss of estate and expenses on last rites. I add a sum of `20,000/- under these heads and assess a sum of ` 4,30,000/- as compensation in favour of Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document F.A.Os. No. 763, 2450, 2505 and 3003 of 2010 8 ..
claimants, Ajay Kumar Singal and his wife Smt. Renu Singal in FAO No. 763 of 2010.
Coming to the case of Arun Kumar Singal, who has brought a claim petition on the death of Manoj alias Manni alias Ashutosh, the amount of `3,60,000/- has to be awarded as compensation for the death, independent of the compensation under other heads allowed by learned tribunal. So, `3,60,000/- with `50,000/- for mental pain and suffering for loss of company of the child and a sum of ` 1,00,000/- for medical expenses would come to `5,10,000/- and adding to it a sum of ` 20,000/- as compensation under the conventional heads, I assess a sum of ` 5,30,000/- as compensation in favour of Arun Kumar Singal and his wife on the death of their son Manoj alias Manni alias Ashutosh.
Consequently, the FAO No. 763 of 2010 is allowed enhancing the compensation from ` 4,10,000/- to ` 4,30,000/- and FAO No. 2505 of 2010 is allowed enhancing the compensation from `4,50,000/- to `5,30,000/-. The other terms regarding rate of interest etc. appearing in the award of the Tribunal shall remain the same.
In view of my foregoing discussion, FAOs No. 2450 of 2010 and 3003 of 2010 filed by the insurer, ICICI Lombard General Insurance Co. Ltd. are dismissed.
(VIJENDER SINGH MALIK) JUDGE November 25th, 2013 som Prakash Som 2013.11.29 11:29 I attest to the accuracy and integrity of this document