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2014 DIGILAW 358 (PNJ)

Jalpati v. Premo

2014-02-13

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan,J. Two cross appeals, as noticed above, are being disposed of by this single judgment, having arisen out of the same impugned award dated 25.03.1991, passed by the learned Motor Accident Claims Tribunal, Jind (for short 'the Tribunal'), on account of death of Rajinder Singh, aged 40 years in a motor vehicular accident. The learned counsel for the appellants in FAO No.1430 submits that the learned Tribunal has wrongly applied deduction of 1/3rd on account of personal expenses of the deceased keeping in view the number of dependents. The learned counsel further contends that the multiplier has also been wrongly applied. The learned counsel lastly argued that the compensation awarded under the head loss of love and affection is also inadequate. Learned counsel for the appellants-owner and driver in FAO No.1431 of 1991 contends that the offending tractor was fully insured with the respondent-Oriental Insurance Company. Therefore, its liability ought not have been limited. I have heard the learned counsel for the parties and perused the record. In FAO No.1430 of 1991, it has come on record that the offending tractor was insured with the respondent-Oriental Insurance Company from 17.10.1989 to 16.10.1990. The date of accident is 18.02.1990. Thus, there was a valid cover on the date of accident. Therefore, the learned Tribunal had in fastening limited liability upon the respondent-Company to the tune of Rs.1,50,000/inasmuch as on the date of the accident New Motor Vehicle Act, 1988 has come into force and therefore, the liability out to have been determined in terms of the Act of 1988 and not the Act of 1939. Hon'ble the Supreme Court in National Insurance Company Ltd. Vs. Behari Lal, 2000 (4) R.C.R. (Civil) 445 has held as under: “In the instant case, the policy was issued on October 28, 1988 and it was valid upto October 27, 1989. The New Act came into force on July 1, 1989 and the accident occurred on September 4, 1989, after the New Act came into force but before the expiry of the policy in force. On these facts the liability of the Insurance Company will be governed by subsection (2) (a) of Section 147 of the New Act, namely, the amount of liability incurred but not under Section 95 (2) of the Old Act. On these facts the liability of the Insurance Company will be governed by subsection (2) (a) of Section 147 of the New Act, namely, the amount of liability incurred but not under Section 95 (2) of the Old Act. The High Court is, therefore, right in allowing the appeal of the respondents claiming the whole amount of compensation awarded by the Tribunal from the Insurance Company. We find no merits in this appeal, It is, accordingly, dismissed with costs. Appeal dismissed.” In view of the above, the present appeal is allowed and the entire liability is fastened upon the respondent-Oriental Insurance Company. The statutory amount and all other amounts deposited by the appellants, be released in favour of the appellants. In FAO No.1431 of 1991, from the perusal of the record, it is made out that the deceased Rajinder Singh, was 40 years of age at the time of his death. The learned Tribunal has assessed the income of the deceased to the tune of Rs. 2,655/per month and applied multiplier of 16 and deduction to the extent of 1/3rd . The learned Tribunal has applied cut on account of personal expenses as 1/3rd, which is totally incorrect. Keeping in view the number of dependents i.e. four, (widow, two minor girls and one minor son) in terms of the law laid down in Smt. Sarla Verma Vs. Delhi Transport Corporation (SC), 2009(3) R.C.R. (Civil) 77, the same is decreased to 1/4. It is ordered accordingly. It is further observed that the learned Tribunal has not awarded anything towards future prospects. Hon’ble the Apex Court, in Rajesh Vs. Rajbir, 2013(9) SCC 54 , has held that in the case of a self employed or a person with a fixed wages, there must be an addition to the actual income of the deceased while computing future prospects. The deceased was 40 years of age. Therefore, an addition of 50% is ordered towards future prospects. If, the above considerations are taken into account, the compensation towards dependency would come to Rs.2,655/(monthly income) + 50% (future prospects) x 12 x 16 (multiplier) X 1/4 (deduction) =5,73,504/,. The Tribunal has already awarded compensation amounting to Rs.2,88,000/. The balance amount would come to Rs.2,85,504/. Similarly, in view of the judgment rendered by the Hon'ble Supreme Court in Vimal Kanwar and others Vs. Kishore Dass and others 2013(3) PLR 776. The Tribunal has already awarded compensation amounting to Rs.2,88,000/. The balance amount would come to Rs.2,85,504/. Similarly, in view of the judgment rendered by the Hon'ble Supreme Court in Vimal Kanwar and others Vs. Kishore Dass and others 2013(3) PLR 776. , this court feels that the ends of justice would be met, the amount of Rs.1,00,000/payable to the widow of the deceased for loss of consortium and Rs.1,00,000/to the children’s for loss of love, care and guidance in equal shares. In view of the above, the claimants-appellants are held entitled to the enhanced compensation of Rs.4,85,504/([Rs.2,85,504 +2,00,000/) over and above the amount already awarded by the Tribunal, which shall be payable to them, within a period of 45 days from the date of receipt of certified copy of this judgment, failing which, they shall also be entitled to interest @ 7.5% per annum, from the date of filing the present appeal, till its realization. With the aforesaid modification in the impugned judgment the present appeals FAO No. 1431 of 1991 is partly allowed and FAO No.1430 of 1991 is allowed.