Mr. K. Kannan, J.: (Oral) - CM No. 1759-CII of 2014 in FAO 598 of 2014

For the reasons mentioned in the application, delay in re-filing the appeal is condoned. Civil Miscellaneous Application stands disposed of.

CM 2580-CII of 2014 IN XOBJC No. 20-CII of 2014 in FAO 2705 of 2013

For the reasons mentioned in the application, delay in filing the cross- objection is condoned. Civil Miscellaneous Application stands disposed of.

Main Cases

1. All the appeals are at the instance of the claimants and the owner. FAO 2838 of 2013 and FAO 2705 of 2013 are at the instance of the owner aggrieved against the denial of indemnity and a provision for recovery granted to the insurer. FAO 598 of 2014 and cross objection in FAO 2705 of 2013 are at the instance of the claimants seeking for enhancement.

2. The accident had taken place on 31.08.2011. The counsel for the insurer seeks to contend that it was the case of head on collision and, therefore, the driver of the motorcycle must be taken as having contributed to the accident. The Tribunal has already found the truck driver to be responsible. There is not even an appeal filed by the insurer. The thrust of argument by the counsel appearing on behalf of the owner was not to deny the negligence itself but only plead for a right of indemnity, as per the terms of the policy and the proof which he was trying to adduce with respect to the validity of the driving licence.

3. I will therefore discard and argument raised placing reliance on a judgment of this Court in Rajinder Puri vs. Sandeep Singh (minor) and others, [2014(4) Law Herald (P&H) 3020] : 2014 (3) PLR Page 625 that there should be a finding of contributory negligence. There can be no rule of thumb that a head on collision must always be taken as resultant to contributory negligence of both vehicles. It depends on facts of each case. In this case the collision that caused the death of motorcyclist have been assessed by the Tribunal as resultant to a rash driving of the truck. I will find no reason to modify the same and confirm the finding recording rash and negligence of the driver of the truck.

4. As regards the quantum in FAO 598 of 2014, the deceased was 51 years of age and a housewife. The claimants were the husband and major son and major daughter. The Tribunal took the value of her services at Rs. 2500/-. The counsel argues that there must be prospects of increase. Taking the value of services at Rs. 4500/- and allowing for a multiplier of 11 suitable to the age of deceased, I will provide for the lakh of rupees for loss of consortium to the husband and make a further provision of Rs. 25000/- to each major son and daughter for loss of love and affection. Various heads of claim are tabulated as under.

Fatal Accident	Age : 51
Date of accident	31.08.2011
Occupation	Housewife
Claimants:	Husband and major son and major daughter

    

Sr. No.	Heads of claim	Tribunal Amount (Rs.)	High Court Amount (Rs.)
1.	Income	2500	4500
2.	Add, % of increase
3.	Deduction
4.	Multiplicand (annualised)	30000	54000
5.	Multiplier	11	11
6.	Loss of dependence	3,30,000	5,94,000
7.	Medical expenses		1,00,000
8.	Loss of Consortium		50,000
9.	Loss of love and affection for children		25,000
10.	Loss to estate
11.	Funeral Expenses	10000	25,000
	Total	3,40,000	7,69,000

5. The total compensation payable shall be Rs. 7,69,000/-. The additional amount assessed shall also attract interest at the rate of 9% from the date of petition till the date of payment and shall be distributed between the husband and children and the ratio 2:1:1.

6. As regards the cross objection in FAO 2705 of 2013, the case was death of a young person aged of 2