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2010 DIGILAW 3096 (PNJ)

Sharda v. Smt. Dharmi

2010-11-18

K.KANNAN

body2010
Judgment K.Kannan, J. 1. I. CM No. 18855-CII of 2010 in and FAO No.2376 of 1995 (O&M) This is an application filed by the claimants for restoration of appeal which was dismissed for default on 05.01.1996. The appeal had been filed for enhancement of compensation for death of a person in a motor accident. The claimants were wife, daughter and two sons. The deceased was 35 years of age at that time. The Insurance Company had also come on appeal challenging liability on the ground that the driver did not have a valid driving licence. The appeal has been pending. 2. The contention of the claimants in the application for restoration is that the counsel, who had been engaged to file the appeal, had subsequently died and the parties were under the impression that the case was still pending. Only at that time when the Insurance Companys appeal came up for hearing, it was represented that the claimants appeal must also be tacked along with it and only at the time it was known that the appeal had been dismissed for default. There is no doubt there is enormous delay for filing the application for restoration. If the Insurance Companys appeal had already been disposed of, the application could have been dealt differently. But if the Insurance Companys appeal is also still pending and a finality had not reached with reference to the award already passed by the Tribunal, I do not think any prejudice would be caused either to the claimant or to the owner. Both of them are represented through counsel and present before me. Under the circumstances, I allow the application and direct the counsel to make their respective submissions even in the appeal filed by the claimants for enhancement of compensation. 3. The two areas of contest by the claimants seeking for enhancement is that the deceased was a goldsmith and the evidence was that he was earning Rs.5,000/- per month. The Tribunal took note of the fact that he was not an income tax assessee and took the income at Rs.48,000/-, made a deduction of l/3rd, applied a multiplier of 16 and provided for a compensation of Rs.5,12,000/-. The claimants further contention is that the claimant was supporting a large family of wife, daughter and two sons and deduction of 1/3rd was high. The claimants further contention is that the claimant was supporting a large family of wife, daughter and two sons and deduction of 1/3rd was high. I will reappraise the compensation in the manner provided for as regards the choice of multiplicand and multiplier in the manner referred to by the judgment of the Honble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another, (2009-3)155 PLR 22 (SC). 4. It is contended that the Tribunal had not provided for the medical expenses, for, the deceased had fairly a long spell of hospitalization and he had filed the petition in his own through a next friend but he had died during the pendency of proceedings and later the application was amended by impleading the legal representatives and claiming compensation as one for death in respect of injuries as it was when the case is originally filed. The medical bills were marked as P-1 to P-232 which total up to Rs.71,000/- and the entire amount has not been awarded. In my view, the medical expenses ought to have been provided for. I would also provide for Rs.5,000/- for loss of consortium; Rs.2,500/ for each one of the minor children; Rs.2,500/- for loss to estate and Rs.2,500/- for funeral expenses. 5. I tabulate the claim for compensation for the claimants as follows:- Sr. No. Heads of claim Tribunal Amount (Rs.) High Court Amount (Rs.) 1. Income - - 2. Add,% of increase 30%/50% - 3. Average monthly income x 12 48,000 48,000 4. Deduction 1/4 5. Multiplicand 32,000 36,000 6. Multiplier 16 16 7. Loss of dependence - 5,76,000 8. Medical expenses - 71,000 9. Loss of consortium - 12,500 10. Loss to estate - 2,500 11. Funeral expenses 10,000 2,500 Total 5,12,000 6,64,500 The total amount which will become payable will be Rs.6,64,500/-. The amount in excess over what was determined by the Tribunal shall attract interest at 6% from the date of petition till date of payment. II. FAO No. 122 of 1996 6. The case still deserves further consideration for the point raised by the applicant/insurer in FAO No.122 of 1996. The amount in excess over what was determined by the Tribunal shall attract interest at 6% from the date of petition till date of payment. II. FAO No. 122 of 1996 6. The case still deserves further consideration for the point raised by the applicant/insurer in FAO No.122 of 1996. It is pointed out by the counsel that a demand for production of licence was made during the pendency of trial after the statement was filed and only when the witnesses were being examined, the driver had produced a copy of the licence on 04.12.1995 whereupon the insurer had moved a petition for verification of the driving licence which was not acceded to by the Tribunal on the ground that the Insurance Company had not taken effective steps for such verification even earlier. I cannot accept this reasoning for the document was produced not immediately after demand but nearly 1 1/2 years later. The copy of the licence was again produced only after examination of witnesses had commenced. I cannot find any laches on the part of the insurer and the Insurance Company was bound to have been granted an opportunity to establish that there was no driving licence for it was one of the permissible defences under Section 149(2) of the MV Act. Therefore, I set aside the finding regarding the driving licence and will afford to the Insurance Company an opportunity to produce appropriate evidence regarding the validity or otherwise of the driving licence. The owner and the driver shall be at liberty to give evidence in rebuttal of the contentions raised by the insurer and set up their own defence with reference to the driving licence. The matter shall stand remitted to the trial Court only for an inter se adjudication between the insurer and the insured about the validity of the driving licence. The ultimate finding by the Tribunal will also govern the right or otherwise of the insurer to obtain refund of the amount after satisfying the claim of claimants, which they shall do as per the modified decree which was passed in the connected appeal in FAO No.2376 of 1995. III. Conclusion 7. The ultimate finding by the Tribunal will also govern the right or otherwise of the insurer to obtain refund of the amount after satisfying the claim of claimants, which they shall do as per the modified decree which was passed in the connected appeal in FAO No.2376 of 1995. III. Conclusion 7. FAO No.2376 of 1995 is allowed with the modification of the award as mentioned above and FAO No.122 of 1996 is also allowed setting aside the award as regards the finding relating to the driving licence and remitted to the Tribunal at Jind for disposal according to law. 8. For appearance of parties before the Tribunal at Jind on 15.12.2010.