UNITED INDIA INSURANCE COMPANY Vs. RAJINDER KAUR PAL

JUDGEMENT

(1.) THIS appeal must be taken as continuation of the order already passed by this Court on 5th October, 2012. I have observed in the order that a connected appeal in FAO No. 1177 of 1991 arising out of the same accident concluded the issue only in respect of a claim against the insurer and the owner of the car involved in the accident since the above appeal had been filed only by the owner of the car and the insurer. The claimants had actually filed a cross -objection but it appears that the cross -objection was also dismissed. In this case, namely, in FAO No. 255 of 1991, the appeal is by the insurer of the truck contending, inter alia, that the liability as determined would have to be restricted only to Rs. 1,50,000 since the policy was issued under the Motor Vehicles Act of 1939 and the statutory limitation of liability was only Rs. 1,50,000 for a 3rd party claim against the insurer of the truck. I had, at the previous hearing also, directed the Counsel for the Insurance Company to produce the copy of the policy and I see that the policy had been issued only under the Act of 1939 where a restriction of liability for the insurer is to the extent of Rs. 1,50,000. Insofar as the award impugned cast a liability of the entire amount of 60% on what the Tribunal determined, the award would require to be modified in favour of the appellant insurer restricting the liability to Rs. 1,50,000 only. There is a cross -objection for enhancement and this cross -objection, in my view, must be understood as a cross -objection for a claim against the appellant/insurer and the owner of the truck only. The cross -objection filed already in the appeal filed by the owner of the car which has been dismissed concludes the liability of the owner of the car and the insurer and it cannot be reopened. The deceased was an engineer employed in a private company, drawing Rs. 11,600. Considering the fact that he was in a settled employment in a responsible post as a General Manager, I will make provision for a prospect of increase by 50% as a person, who was less than 40 years of age in the manner contemplated by the Supreme Court in Sarla Verma and Others v. Delhi Transport Corporation and Another, : III (2009) ACC 708 (SC) : VI (2009) SLT 663 : 162 (2009) DLT 278 (SC) : 2009 A.C.J. 1298, and take the income to be Rs. 17,400, make a deduction of 1/3rd for personal expenses when the claimants were wife, mother and 4 children. I will take the contribution to the family at Rs. 13,050, but this will still be reduced by 10% considering the fact that the average income taken after making a provision for future increase would fall within the taxable limits and the income contributed to the family less tax deducted at 10% would be Rs. 11,745. If a multiplier of 15 were to be adopted after annualizing the income, the loss of dependence will be Rs. 21,14,100. I would also provide for conventional heads of claim for loss of love and affection for the 4 minor children, loss of consortium to the wife and the loss to estate and funeral expenses by an additional amount of Rs. 16,000 and take the compensation payable as Rs. 21,30,100. Out of this amount, 60% of the amount that was attributed to the negligent driving of the truck would make available to the claimants to secure a compensation of Rs. 12,78,060. Out of this amount of Rs. 12,78,060, the claimant has already secured Rs. 7,68,000 as payable by the owner of the truck and the insurer. The balance of amount would be Rs. 5,10,060. I hold the Insurance Company to be made liable only to the extent of Rs. 1,50,000. The amount in excess of what has been determined as payable shall be recovered only from the owner of the truck, who shall be vicariously liable also for the negligence of the driver of the truck. The appeal by the insurer is allowed restricting the liability to Rs. 1,50,000 and the cross -objection is allowed, but limiting the claimants' right of enforcement only to the extent already indicated and for the rest of the amount, it shall be recovered only against the owner of the truck. This additional amount now assessed shall be distributed equally amongst the widow and children only with interest at 6% from the date of petition till date of payment.

(2.) THE appeal and the cross -objection are disposed of as above.