Archana arora FAO No.5366 of 2011(O&M) 1 2014.01.21 16:32 I am the author of this document IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No.5366 of 2011(O&M) Date of decision January 14, 2014 Chand Ram and others ....... Appellants Versus Ranjeet and another ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Ashit Malik , Advocate for the appellants. Ms. Vandana Malhotra, Advocate for respondent No.2. **** 1. Whether reporters of local papers may be allowed to see the judgment ?.
2. To be referred to the reporters or not?.
3. Whether the judgment should be reported in the digest?. K. Kannan, J (oral).
1. The claimant is in appeal finding the rejection of the claim against the Insurance Company as untenable on the ground that the vehicle which was a commercial vehicle did not have a permit. The vehicle admittedly had been insured as a commercial vehicle and the premium had been paid on that basis only. So long as the policy cover includes a risk caused while plying the vehicle for commercial purpose, the third party is entitled to obtain enforcement of right against the Insurance Company and even the insured is entitled to 100% indemnity. The denial of such a right to the claimant and exoneration of the Insurance Company was clearly untenable. FAO No.5366 of 2011(O&M) 2 2. Learned counsel refers to me a decision in National Insurance Co. Ltd. Vs. Chella Bharthamma 2004 (8) SCC517to contend that the vehicle which is driven without a permit cannot make the insurer liable. The Supreme Court was considering a case of a person plying a vehicle without a permit and who had also no insurance to cover the risk for user as such commercial vehicle. The key issue is whether the policy of the Insurance covers a risk or not. The permissible defence which is given under Section 149 of the Motor Vehicles Act is a defence which would include that the vehicle which was used was for a purpose not allowed by the permit. When the vehicle is used for a purpose which was not permitted , it shall allow the insurer to take a defence of no liability. In this case admittedly the owner has insured the vehicle for use as a commercial vehicle and that should therefore conclude the issue whether the Insurance Company will be made liable or not. We are not dealing with a situation as obtained in Cheela Bharthamma's case (supra) where there was no insurance cover for use of the vehicle as a transport vehicle. The Insurance Company is made liable on a contract of indemnity that it provides through a policy and if there was a contract for covering the risk for user of the vehicle for a commercial purpose that itself must be seen as justifying a claim against the Insurance Company. 3 The dismissal of the claim against the Insurance Company was clearly wrong and it is set aside. The Insurance Company is therefore made liable. On the issue of quantum the deceased was 36 years of age and he supported a FAO No.5366 of 2011(O&M) 3 family of his parents, wife and two minor children. He was said to be doing dairy business and there was documentary proof that he was supplying milk to a Cooperative Society. It is stated in the evidence that he was earning `10,000/- per month but the Court assumed the income at `3,000/- applied a 1/3rd deduction and adopted a multiplier of 16. I will reappraise the compensation on the scales suggested in Sarla Verma Vs.Delhi Road Transport Corporation reported in (2009) 6 SC121as explained later in Reshma Kumari and others Vs. Madan Mohan 2013 9 SCC65 Considering the fact that there was documentary proof for the milk business which he was doing, I would take with appropriate provisions for a possible future increase. The income would have been `5,000/- per month and I apply a deduction of 1/4th and take the monthly contribution to the family at `3,750/- per month adopt a multiplier of 15 and the loss of dependency shall be taken as `6,75,000/-. Considering the fact that the accident took place in the year 2000 I will allow for loss of consortium to the wife at `10,000/-, loss of love and affection to each of the children at `10,000/- and also provide for funeral expenses and loss of estate at `10,000/- each and take the total compensation payable at `7,25,000/-. The amount in excess of over what was awarded already shall attract interest at 7.5% per annum from the date of petition till the date of payment. The additional compensation shall be distributed in the ratio of 2:2:1:1 amongst the widow, children and each of the parents.
4. As regards the share of the parents the whole amount shall be payable immediately and as regards the minor child FAO No.5366 of 2011(O&M) 4 the same shall be retained during the minority and released after they attain majority. As regards the share of the wife half of the amount determined shall be paid immediately and remaining 50% shall be invested by splitting into 5 equal shares, the first share to be deposited for a period of one year, second for a period of two years and so on up to 5 years and the amount will be released to the widow on maturity of the respective sums at the relevant time.
5. The appeal is allowed to the above extent. (K. KANNAN) JUDGE January 14, 2014 archana