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2010 DIGILAW 2920 (PNJ)

Oriental Insurance Co. v. Kamlesh

2010-10-14

K.KANNAN

body2010
JUDGMENT K. KANNAN J. 1. All the appeals arise out of the same accident. Appeals in FAO Nos.813 and 1523 of 1999 are at the instance of the claimants seeking for enhancement of compensation awarded by the Tribunal to the representatives of the deceased persons and FAO No.463 of 1999 is at the instance of the insurance company challenging the liability which arises out of an independent claim. 2. The factum of accident and the involvement of the insured vehicle are not in dispute. The accident is said to have taken place on 05.11.1996 when one of the claimants before the Tribunal, Danial Joseph was the driver returning from Manali to Ambala in Tata Sumo DL-8CM-4779 and when it reached village Sarsini Bridge, the insured's truck bearing registration No.HNX-1411 carrying maruti cars dashed against the Tata Sumo vehicle as a result of which, three persons Brij Pal Singh, Yudhister and Ram Niwas Mittal died and yet another passenger also died later at the hospital. The owner and driver remained ex parte. The case was contested only by the insurance company, which denied in general way all the details set out in the petition. Most importantly the fact of a valid insurance was not in dispute. 3. FAO No.463 of 1999, the appeal filed by the insurance company brings out only the aspect that the Tribunal had committed a clerical error in arriving at the compensation by finding the result of Rs.5,000x12x12 as Rs.9,60,000/-when the value ought to have been only Rs.7,20,000/-. The insurance company admittedly did not have the benefit of Section 170 of the Motor Vehicles Act and therefore, has moved an application before this Court. There is no collusion at the trial although the driver and the owner remained ex parte. If it was merely an issue relating to the clerical mistake in the manner urged by the insurance company, I will allow that to be taken without even taking permission under Section 170 of the Motor Vehicles Act. There is a cross objection filed by the claimants themselves and therefore, the issue of compensation becomes a ground for adjudication irrespective of the fact whether the insurance company had the benefit of Section 170 of the Motor Vehicles Act or not. The evidence was that the deceased was 45 years of age and he was also an income tax assessee. The evidence was that the deceased was 45 years of age and he was also an income tax assessee. He was supporting his wife and two minor children. He was running a fertilizer shop and the evidence itself was that they had gone to attend a conference of fertilizers depot owners and the Tribunal, therefore, took against the contention of his earning as Rs.10,000/-per month that he must have earned about Rs.7,000/-per month. The income tax return that had been filed as C5 in the year 1996-97 and C6 for the part of the income tax return showed the gross income from the shop as Rs.51219.76. If there was a document produced to substantiate income, there was hardly a scope for a Tribunal to make its own conjecture about a higher income, which was quite unnecessary. If we take the annual income to be Rs.50,000/-and provide for 1/3rd deduction and adopt a multiplier of 14 and also add the conventional heads of compensation for loss of consortium, loss to estate and funeral expenses, the compensation that shall become payable would seem to be even less than what is determined by the Tribunal. There is no scope for enhancement. 4. The insurance company itself cannot be treated as aggrieved person against the award amount. I would only set right the clerical mistake that has come about in the manner of assessment of compensation for taking the value of Rs.5,000x12x12 to be Rs.9,60,000/-instead of Rs.7,20,000/-. There is no scope for enhancement of compensation of what has been already granted by the Tribunal. The award of the Tribunal shall stand modified and the appeal and the cross appeal are disposed of as above. 5. The claim in FAO No.813 of 1999 relates to assessment of compensation for death of one Yudhister who was aged 28 years and was said to be a sales representative with M/s Trilo Agro Industries Limited earning Rs.5,000/-per month. The Tribunal assessed the monthly dependency of the claimants who were widow and the minor daughter at Rs.3,000/-and assessed the compensation of Rs.5,76,000/-. The claimants would contend that the Tribunal ought to have accepted the copy of the appointment letter filed as Ex.C56 and vouchers C57 and C58, which had been filed on record showed that he was drawing a salary of Rs.5,000/-. The claimants would contend that the Tribunal ought to have accepted the copy of the appointment letter filed as Ex.C56 and vouchers C57 and C58, which had been filed on record showed that he was drawing a salary of Rs.5,000/-. Copy of the ledger C59 had also been evidenced to show the actual payment of salary at that rate and I am prepared to accept the contention and take the salary at Rs.5,000/-providing for a deduction of 1/3rd and adopt a multiplier of 17. The loss of dependence would be Rs.6,80,000/-. I would add Rs.5,000/-towards loss of consortium to the wife and Rs.5,000/-for loss of love and affection and another Rs.5,000/-towards funeral expenses and loss to estate. In all the additional amount shall be Rs.6,95,000/-. The Tribunal has awarded 12% interest. The amount in excess of what has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. The appeal shall stand allowed to the above extent. 6. FAO No.1523 of 1999 is for enhancement of claim for death of Brij Pal Singh, who was working as the Regional Manager, Marketing with M/s Trilo Agro Industries Limited. He was 35 years of age and said to be earning Rs. 8,000/-per month. The Tribunal assessed the dependency of the family at Rs.4, 000/- and adopted a multiplier of 16. The contention of the learned counsel is that salary paid to the deceased was proved through the appointment letter C48 and salary vouchers C49 to C55 and the Tribunal was in error in taking the dependency only at the rate of Rs.4,000/-per month. I would accept the salary details as produced by the claimants and take the extent of dependency after providing for a 1/3rd deduction at Rs.5333/-and adopt a multiplier of 16. The loss of dependency would come to Rs.10,23,936/-. I would add Rs.5,000/-towards loss of consortium to wife, Rs.5,000/- towards love and affection to each minor children and add another Rs.5,000/-for funeral expenses and loss to estate. The total amount that will become payable would be Rs.10,43,936/-, which I will round off to Rs.10,44,000/-. The Tribunal has awarded a compensation of Rs.7,68,000/-. The amount in excess of what has already been awarded shall bear interest @6% from the date of the petition till the date of payment. 7. The total amount that will become payable would be Rs.10,43,936/-, which I will round off to Rs.10,44,000/-. The Tribunal has awarded a compensation of Rs.7,68,000/-. The amount in excess of what has already been awarded shall bear interest @6% from the date of the petition till the date of payment. 7. The appeal in FAO No.1523 of 1999 is allowed to the above extent. Appeal Allowed.