Partly allowed

New India Assurance Co. Ltd. v. Sarla and Ors.

Punjab & Haryana HC7 Jan 2019FAO/7228/2015

Case brief

AI extract

What is this about?

The High Court partially allowed the insurance company's appeal against the High Court Tribunal's award in a fatal accident case. The court reduced the assessed income of the deceased from Rs. 12,000 to Rs. 10,000 monthly despite lack of documentary salary proof, and reapplied the 40% future prospects cap.

What did the court decide?

The appeal by the insurance company is partly allowed. The compensation is reduced from Rs. 19,70,000 to Rs. 19,60,000. The appeal by the claimants is dismissed.

New India Assurance Co. Ltd. Vs Sarla and… — Execution and Attachment | Punjab & Haryana HC (2019)

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FAO-7228-2015

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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(1)

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FAO No.7228 of 2015 (O&M) Date of Decision: January 07, 2019.

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New India Assurance Company Limited

Sarla and others

(2)

VERSUS

..........APPELLANT(s). ........RESPONDENT(s). FAO No.7407 of 2015 (O&M)

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Sarla and others

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..........APPELLANT(s).

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VERSUS

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Ajmeet Singh and others

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........RESPONDENT(s).

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CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA

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Present: Mr. Suvir Dewan, Advocate for the appellant in FAO-7228-2015 and for respondent No.3 in FAO-7407-2015.

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Mr. Ashok Jindal, Advocate for appellants in FAO-7407-2015 for respondent No.1 in FAO-7228-2015.

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Mr. Anhad S. Miglani, Advocate for Mr. Abhilaksh Grover, Advocate (Court Guardian) for respondents No.2 to 4 in FAO-7228-2015.

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Mr. Nitish Garg, Advocate for respondent No.4 in FAO-7407-2015 and for respondent No.7 in FAO-7228-2015.

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SURINDER GUPTA, J.

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The above captioned two appeals have been filed by New India

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SACHIN MEHTA 2019.01.08 14:01 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH

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FAO-7228-2015

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Assurance Company Limited and claimants Sarla and others against the award dated 02.07.2015. While the insurance company is challenging the quantum of compensation, the claimants are seeking its enhancement as per the law settled by Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi and others 2017(4) R.C.R. (Civil) 1009 .

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So far as the grant of compensation as per the law settled in above referred case is concerned, the same is not disputed by the learned counsel for the parties.

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The tribunal allowed the compensation of `19,70,000/- to the

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claimants, which was computed as follows:-

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(i)	Name of the deceased	Prem Pandey
(ii)	Profession of deceased	Driver
(iii)	Age of the deceased	38 years
(iv)	Income of the deceased assessed by the tribunal on the basis of salary certificate Ex.C1	`12000 p.m.
(v)	Deduction towards personal expenses 1/3^rd(in fact 1/4^thdeduction was taken)	`12000-3000=`9000 p.m. i.e.`108000 p.a.
(vi)	Multiplier applied 15	`108000X15 =`1620000
(vii)	Funeral expenses	`25000
(viii)	General damages	`25000
(ix)	Loss of estate	`100000
(x)	Loss of consortium	`100000
(xi)	Loss of love and affection	`100000
	Total	`19,70,000/-

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Learned counsel for the insurance company has argued that the

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minimum wages for the skilled worker as on 01.03.2013 was 7,372/- per month. The accident took place on 27.02.2013, as such, the tribunal has committed error in assessing monthly income of the deceased as 12,000/-

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SACHIN MEHTA 2019.01.08 14:01 I attest to the accuracy andauthenticity of this document per month instead of taking minimum wages prescribed by the State of HIGH COURT, CHANDIGARH

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FAO-7228-2015

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Punjab for skilled workers.

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Learned counsel for the claimants has argued that claimants proved on file salary certificate of the deceased as Ex.C1 as per which, the deceased was drawing a salary of `12,000/- per month at the time of accident.

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In order to prove the income of the deceased, the claimants have examined owner of the vehicle, which the deceased was driving at the time of accident. He has stated in his affidavit that deceased was employed by him and he was paying him salary of 12000/- per month. He, however, could not produce any document regarding the employment or payment of salary to the deceased. The tribunal, while assessing income of the deceased, has observed that the driver could earn 12,000/- per month. However, it has not given any reason for making the above observation. The tribunal has also observed that “in this case, salary has been duly proved and when there have been no denial, income of the deceased is to be taken as admitted.” This observation of the tribunal is also without any basis as even in the cross-examination of CW1, he was asked to produce any document regarding the employment and salary of the deceased, which he could not produce and respondent insurance company has contested the plea of claimants qua monthly income of deceased.

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Though, no documentary evidence regarding employment and payment of salary to the deceased has come on record, still the testimony of CW1 Rakesh Kumar cannot be discarded to the effect that deceased was employed by him as driver. Even in his cross-examination, a suggestion was given to him that he (CW1 Rakesh Kumar) was using his Innova

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SACHIN MEHTA 2019.01.08 14:01 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH

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FAO-7228-2015

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vehicle as taxi, which signifies that insurance company is virtually admitting the employment of deceased as driver of CW1 Rakesh Kumar. In these circumstances, minimum wages prescribed by the State Government for the skilled workers cannot be taken as wages for assessing the income of the deceased, who was driver by profession. The accident had taken place in the year 2013 and keeping in view the facts, evidence on file and statement of Rakesh Kumar CW1, I am of the view that income of the deceased should be taken as `10,000/- per month.

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Learned counsel for the insurance company submits that under the conventional heads, the tribunal has allowed a compensation of 3,50,000/-, which is to be restricted to 70,000/- per month as per the law laid down by Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi and others (supra). His plea has not been contested by learned counsel for claimants.

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In view of the above, the amount of compensation to which the claimants are entitled to, is reassessed as follows:-

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Sl.No.	Heads	Calculation
(i)	Income of the deceased	`10000per month
(ii)	40% of above (i) to be added as future prospects	(`10000+`4000)= `14000per month
(iii)	Deduction of 1/4^thtowards personal expenses of the deceased	(`14000-`3500)= `10500per month
(iv)	Compensation after multiplier of 15 is applied	(`10500X12X15)=<br>`1890000
(v)	Loss of consortium	`40000
(vi)	Loss of estate	`15000
(vii)	Funeral expenses	`15000
Total		`19,60,000/-

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As a sequel of my above discussion, appeal filed by insurance

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SACHIN MEHTA 2019.01.08 14:01 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH

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FAO-7228-2015

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company (FAO-7228-2015) is partly allowed and appeal filed by the claimants (FAO-7407-2015) is dismissed. The amount of compensation awarded to the claimants is reduced from 19,70,000/- to 19,60,000/-. The insurance company is entitled to recover the excess amount, if already paid, from the claimants. Keeping in view facts and circumstances of the case, parties are left to bear their own costs.

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January 07, 2019.

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( SURINDER GUPTA ) JUDGE

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Sachin M.

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Whether speaking/reasoned: Yes/No Whether Reportable: Yes/No

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SACHIN MEHTA 2019.01.08 14:01 I attest to the accuracy and authenticity of this document HIGH COURT, CHANDIGARH

New India Assurance Co. Ltd. v. Sarla and Ors.

Case brief

What is this about?

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New India Assurance Co. Ltd. v. Sarla and Ors.

Case brief

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