National Insurance Co. Ltd. and Others vs Bimla Devi and Others

Ajay Tewari, J.—These are two cross appeals, FAO No. 3801 of 2011 has been filed by the insurance company challenging the award and FAO No. 5605 of 2011 has been filed for enhancement of compensation. Since both of them have arisen out of a common award, they are being disposed of by this common judgment. For ready reference, facts are being taken from FAO No. 3801 of 2011.

On 28.10.2009 at about 6.00 p.m. Randhir and his brother Jangbir were returning on motor cycle after purchasing household goods from Tosham. Jangbir was driving the motor cycle. When they reached near the shop of Krishan, a dumper bearing no. HR-55-B-2151 came from Khanak side to Tosham having been driven by respondent No. 1 at a high speed and dashed into the motor cycle of Jangbir and he was run over by the dumper and died at the spot. The deceased was stated to be an agriculturist having share in two tractors also but the Tribunal considering him to be a labourer, took his income to be Rs. 4000/- per month. Deducting 1/4th towards his personal expenses, the monthly dependency of the claimants on him was assessed at Rs. 3000/- and annual dependency to be Rs. 36,000/-. Considering the age of the deceased as 35 years, multiplier of 16 was applied and thereby the amount of compensation worked out was Rs. 5, 76,000/-. The amount under conventional heads was awarded to the tune of Rs. 30,000/-. In this way the total amount of compensation awarded was Rs. 6,06,000/- to be payable by all the respondents jointly and severally.

Learned counsel for the insurance company-appellant has argued that the accident has not been proved. He has emphasised the contradiction in the version put before the Court (which as per him supports him) and the version of the FIR which supports the claimants and has argued that the Tribunal erred in relying on the averments made in the FIR and ignored the averments and testimony in the affidavit. The contradiction is that in the FIR the brother of the deceased mentioned that he and the deceased were travelling on different motor cycles but in the claim petition and in his evidence he mentioned that they both were on the same motor cycle. As per him in these circumstances it has to be believed that both of them were on the same motor cycle and if that is so, since it is a head-on collision, he would have surely received injuries. He urged that the only inference which can be drawn from these facts is that he was not present at the site.

The second argument of learned counsel for the insurance company is that as per the testimony of PW 2 they started from Tosham at about 5.45 p.m. and the motor cycle was being driven at a very moderate speed. The accident took place 4 Kilometers from Tosham and the FIR was recorded at 6.00 p.m. by the police. He has argued that these facts reveal that there is a collusion between the driver/owner and the claimants.

Both these arguments have been considered by the Tribunal. In the first place it cannot be said with certainty that if two people are going on a motor cycle and there is a head-on collision, both of them must have received injuries. There have been recorded cases where people have fallen from height of 100 feet and have escaped without any injury while some other person may fall and die while walking. In these situations coincidences and circumstances can be so diverse that no rule can be made. The second argument about the head-on collision has been correctly explained by the Tribunal by holding that examples like this are not unknown in country where a majority is illiterate and an even larger number, including advocates do not have the necessary familiarity with the foreign language, English.

The question is whether the finding of the Tribunal is based on no evidence or on a completely perverted reading of the evidence. Learned counsel for the insurance company has succeeded in casting some doubt in the story set out by the claimants but the issue before this Court is whether it is a criminal trial where by showing some doubt learned counsel would earn acquittal for his client. The present is not a criminal case. The mere fact that some doubt has been cast on the veracity of a version would not displace the whole story.

The appeal is dismissed.

FAO No. 5605 of 2011

This is an appeal for enhancement of compensation. The argument of learned counsel for the appellants is that nothing has been awarded for future prospects. The deceased was of the age of 21-22 years, therefore, an additional increase of 50% should have been granted towards future prospects. In support of his contention he has relied upon Rajesh and Others Vs. Rajbir Singh and Others, .

To controvert this argument learned counsel for the insurance company has relied upon Reshma Kumari and Others Vs. Madan Mohan and Another, .

This point has been discussed elaborately by this Court in FAO No. 2990 of 2011, Manjit Kaur and others v. Ramesh Kumar and others decided on 08.01.2014. Adopting the same analogy I award an additional increase of 50% towards future prospects.

Learned counsel for the appellants has further argued that no amount has been awarded under the conventional heads i.e. loss of love and affection, loss of consortium and funereal expenses etc. He has placed reliance on Rajesh and Others Vs. Rajbir Singh and Others, , and Vimal Kanwar and Others Vs. Kishore Dan and Others, .

As regards compensation regarding loss of love and affection, counsel for the respondent-Insurance Company has argued that the Hon''ble Supreme Court in Rajesh and others'' case (supra) granted a total amount of Rs. 1 lac towards loss of consortium to the widow and Rs. 1 lac to three minor children for loss of care and guidance.

Counsel for the appellants, on the other hand, has contended that in Vimal Kanwar and others'' case (supra), the Hon''ble Supreme Court awarded a sum of Rs. 1 lac to the widow and a sum of Rs. 2 lac to the minor girl on account of loss of love and affection, and another sum of Rs. 1 lac towards loss of consortium to the widow.

Consequently, I award an amount of Rs. 1,00,000/- to the widow for loss of consortium and also a sum of Rs. 1,00,000/- to the widow, Rs. 1,00,000/- to the minor daughter and Rs. 50,000/- to the minor son for loss of love and affection and an amount of Rs. 25,000/- to all the claimants for funeral expenses. The enhanced amount of compensation shall carry interest at the rate of 8% p.a. from the date of filing of the claim petition till realisation. The apportionment of the share among the claimants shall be in the same manner as indicated in the award of the Tribunal but as regards the amount awarded to the minors, the same would be put in some nationalised bank in fixed deposit till the time they attain the age of majority.

With the modification in the award, this appeal is allowed to the above extent.