Partly allowed

New India Assurance Co. Ltd. v. Surinder Kaur and Ors.

Punjab & Haryana HC12 Oct 2012FAO/4533/2011

Case brief

AI extract

What is this about?

Appeals against compensation awarded for motor accident death. Court rejected claim that driver was falsely implicated. Enhanced compensation by correcting the percentage deduction for personal expenses from one-third to 50% as per Supreme Court precedent and adding 30% for future prospects. Insurer corresponded dismissed; claimant's appeal partly allowed.

What did the court decide?

Compensation enhanced to Rs. 4,41,200 with interest at 7.5% per annum from the date of petition till realization. FAO No. 4533 dismissed; FAO No. 5113 partly allowed.

New India Assurance Co. Ltd. Vs Surinder Kaur… — Motor Accident Claims | Punjab & Haryana HC (2012)

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FAO No. 4533 of 2011 and FAO No.5113 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No. 4533 of 2011 (O&M) DATE OF DECISION : October 12, 2012

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New India Assurance Company Limited ...Appellant

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Versus

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Surinder Kaur and others

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...Respondents

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FAO No. 5113 of 2011 (O&M)

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Surinder Kaur and others ...Appellants

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Versus

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Tarsem Singh and others

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...Respondents

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CORAM: HON’BLE MR.JUSTICE M.JEYAPAUL

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Present Ms. Vibha, Advocate for the appellant.

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Mr. Ashok Becter, Advocate for respondents no.1 to 6

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Mr. Baldev Kapoor, Advocate for respondents no.7 and 8. ***

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Whether the judgment should be reported in the digest?

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M.JEYAPAUL, J.

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The Insurance Company has preferred FAO No. 4533 of 2011 challenging the liability fixed on it and the quantum of compensation awarded by the Tribunal. FAO No. 5113 of 2011 was filed by the claimants who are the parents of the deceased seeking enhancement of compensation.

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FAO No. 4533 of 2011 and FAO No.5113 of 2011 2

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It is the case of the claimants that on 15.8.2010 Arvinder Singh since deceased proceeded to village Kotwala, along with Manmohan Singh on his motorcycle. A bus bearing registration No. PB-12-K-4944 driven by its driver came in a rash and negligent manner without blowing horn. As a result of which, the bus dashed against the motorcycle and Arvinder Singh sustained injuries and died due to the multiple injuries. As the driver did not stop the bus, one Manjit Singh @ Ladi son of Malkiat Singh chased the bus on his motorcycle. He having stopped the bus, noted down the number of the bus and name of the driver. The claimants have claimed compensation of ` 25 lacs along with interest @ 12% per annum.

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The respondents resisted the claim on the ground that the driver was falsely implicated in the motor accident. The Insurance Company submitted that it was not liable to pay any compensation. A false case was registered against the vehicle bearing registration No. PB-12-K-4944 in order to get the compensation, it is further submitted.

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The Tribunal in the absence of any contrary evidence on the side of the Insurance Company held based on the First Information Report Ex. P3 and the statement of Manjit Singh under Section 161 of the Code of Criminal Procedure marked as Ex.P5 in the background of the evidence of PW3 Manjit Singh that the accident took place only on account of the rash and negligence of the driver of the vehicle bearing registration No. PB-12-K-4944 .

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The Tribunal fixed the monthly income of the deceased as Rs. 3500/- in the absence of any satisfactory evidence on the side of

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FAO No. 4533 of 2011 and FAO No.5113 of 2011 3

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the claimants. The Tribunal deducted 1/3^rd of the income towards the personal living expenses of the deceased.

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The learned counsel appearing for the Insurance Company would submit that the First Information Report does not give any details of the offending vehicle. The First Information Report was registered only against an unknown vehicle. At least the Tribunal should have held that there was contributory negligence on the part of the driver of the motor cycle bearing registration No. PB-12-L2511. The claimant was a bachelor but unfortunately instead of 50%, 1/3^rd of the income was deducted towards the personal expenses, she would further submit.

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The learned counsel appearing for the claimants would submit that the negligence on the part of the driver of the bus bearing registration no. PB-12-K-4944 was established through the First Information Report Ex. P3 and the evidence of PW3 Manjit Singh. No contributory negligence was attributed in the written statement filed by the Insurance Company. No case also was registered against Manmohan Singh who drover the motor cycle bearing registration No. PB-12-L-2511. He would further submit that PW4 Surinder Kaur has cogently spoken to the fact that the deceased was a mason. In the absence of any other evidence to the contrary from the side of the Insurance Company the Tribunal should have at least fixed the monthly income of the deceased treating the deceased as a skilled labourer. It is his further submission that nothing was awarded towards the future prospects.

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As rightly pointed out by the learned counsel appearing

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FAO No. 4533 of 2011 and FAO No.5113 of 2011 4

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for the claimants there was no allegation of contributory negligence as against Manmohan Singh who drove the motorcycle bearing registration No. PB-12-L-2511. Without any foundation in the written statement, the Insurance Company cannot build a defense during the course of arguments before the Appellate Court.

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It is true that the First Information Report Ex.P3 does not give any particulars about the vehicle. In other words a criminal case was launched as regards the accident against an unknown vehicle. In the petition itself it has been categorically stated that PW3 Manjit Singh chased the offending bus and having stopped the bus noted down the vehicle number and driver thereof. Manjit Singh also has categorically deposed that he stopped the vehicle after chasing the same and collected all information about the vehicle. He has been examined by the investigating official on 19.08.2010. In other words within four days his statement was recorded. His statement under Section 161 of the Code of Criminal Procedure was also exhibited as Ex.P5. The challan Ex.P10 is found to have been laid as against the driver of the offending bus. Manmohan Singh who launched the First Information Report had proceeded to the hospital taking the injured for treatment but it was only PW3 who had chased the offending bus and collected the particulars thereof. No wonder Manmohan Singh had not given details about the offending bus in the First Information Report.

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In my considered view, the trial Court has rightly held in the absence of any contrary evidence that the accident took place on account of the rash and negligent driving of the driver of the

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FAO No. 4533 of 2011 and FAO No.5113 of 2011

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offending bus.

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Coming to the quantum of compensation fixed by the Tribunal, I find that there is no independent evidence to establish that the deceased was working as a mason. The trial Court has rightly rejected the evidence of PW4 the mother of the deceased as there is no independent corroboration to her evidence that the deceased was working as a mason. Therefore, the deceased was treated as an unskilled labourer and monthly income of the deceased was fixed by the Tribunal at ` 3000/-.

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As per the decision of the Hon'ble Supreme Court in “Sarla Verma and others vs. Delhi Transport Corporation and another 2009(6)SCC 121” the Tribunal should have deducted only 50% of the income instead of 1/3^rd towards personal expenses.

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It is found that no amount was awarded towards future prospects. As per the decision of Hon'ble Supreme Court in “Santosh Devi vs. National Insurance Company Limited and others 2012 (6) SCC 421” 30% of the income should be added towards future prospects.

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In view of the above, a sum of 3,82,200/- ( 3500 + 30% thereof being 4550 - 50% = 2275 x 12 = 27,300 x 14 = 3,82,200/-) towards loss of dependency, 5000/- towards transportation and funeral expenses, 10,000/- towards love and affection and 44,000/- towards medical expenses, in aggregate a sum of 4,41,200/- is awarded with interest @ 7.5% on the enhanced amount of compensation from the date of petition till the date of realisation.

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FAO No. 4533 of 2011 and FAO No.5113 of 2011

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