Allahabad High Court
Uday Pratap Singh And Ors. vs The New India Insurance Co. Ltd.Thru ... on 10 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 125
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 254 of 2016 Appellant :- Uday Pratap Singh And Ors. Respondent :- The New India Insurance Co. Ltd.Thru Zonal Manager & Ors. Counsel for Appellant :- Mukesh Singh Counsel for Respondent :- Inder Preet Singh Chadha,Narendra Pratap Mishra with Case :- FIRST APPEAL FROM ORDER No. - 293 of 2016 Appellant :- The New India Assurance Co. Ltd. Faizabad Thru Div.Manager Respondent :- Uday Pratap Singh And Ors. Counsel for Appellant :- Inder Preet Singh Chadha Counsel for Respondent :- Mukesh Singh,Narendra Pratap Mishra Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Mukesh Singh, learned counsel for the claimants/appellants and Sri Inder Preet Singh Chadha, learned counsel for the respondents.
In both the above noted appeals, the judgment and award dated 24.12.2015, passed by the Motor Accidents Claims Tribunal (in short 'Tribunal')/Additional District Judge, Court No. 8, District- Faizabad in Claim Petition No. 71 of 2015 [Uday Pratap Singh And Ors. v. The New India Insurance Co. Ltd. and others] has been challenged.
Appeal i.e. FAFO No. 254 of 2016 [Uday Pratap Singh And Ors. v. The New India Insurance Co. Ltd. and others] has been filed for enhancement of compensation and modification of the judgment and award dated 24.12.2015. The appeal i.e. FAFO No. 293 of 2016 [The New India Insurance Co. Ltd. v. Uday Pratap Singh And Ors.] has been filed with a prayer to set-aside the judgment and award dated 24.12.2015, passed by the Tribunal.
The undisputed facts of the case are that on 16.12.2014, the husband of the appellant No. 3 namely late Vijay Kumar Singh was travelling on the Car bearing Registration No. UP 42-R/2049 and at about 9:50 A.M., the said Car met with an accident at National Highway near Chandpur Saidi Patti with the vehicle bearing Registration No. UP 70-CQ/5758. On account of accident, the husband of the appellant No. 3 received serious injuries and was hospitalized in District Hospital, Sultanpur, wherein on account of injuries sustained in the accident in issue, he succumbed. Thereafter, the Claim Petition No. 71 of 2015 was filed before the Tribunal. The claim petition was filed by the legal heirs of the deceased i.e. father (Uday Pratap Singh), mother (Shanti Singh) and wife (Shweta Singh), who are appellants Nos. 1, 2 and 3, respectively, in FAFO No. 254 of 2016.
In the claim petition, for the purposes of compensation, the negligence of vehicle No. UP 70-CQ/5758 was pleaded. With regard to the income, it was pleaded before the Tribunal that the deceased was 35 years old and was Assistant Professor in Kamla Nehru Institute of Physical & Social Sciences, Sultanpur (in short "KNIPSS") and was getting 35,000/- per month as salary. Before the Tribunal, the written statement was filed by the New India Insurance Company (in short "Company") (appellant of FAFO No. 293 of 2016). The written statements were also filed by the owner of the vehicle No. UP 70-CQ/5758 namely Dr. Ravindra Nath Mishra along with Sri Siddharth Mishra, who were impleaded as opposite party Nos. 2 and 3 before the Tribunal in the claim petition. Another written statement was filed by the owner of the vehicle No. UP 42-R/2049 namely Sri Rajendra Krishna Upadhyay along with Sri Vivek Kumar Upadhyay, who were impleaded as opposite party Nos. 4 and 5 in the claim petition before the Tribunal.
The Company in the written statement took the following main pleas:-
(i) The vehicle was not being driven by a person having valid and effective driving licence at the time of accident.
(ii) The vehicle was running without a valid permit at the time of accident.
(iii) The vehicle was being driven in violation of terms and conditions of policy of insurance.
(iv) The claim petition is mis-conceived, frivolous, vexatious and is not maintainable.
(v) The amount of compensation is highly excessive and exorbitant.
(vi) There is no cause of action against the Company.
The owner of the vehicle No. UP 70-CQ/5758, in the written statement filed before the Tribunal has pleaded that the vehicle is insured with the Company and at the time of accident the vehicle was being driven by the driver, who was having valid driving licence and the fitness certificate of the vehicle was also valid. In addition, it has also been pleaded in the written statement that the vehicle was not involved in the accident in issue.
In the written statement filed by the owner of the vehicle No. UP 42-R/2049, it has been pleaded that the deceased Vijay Kumar Singh was travelling in the vehicle No. UP 42-R/2049 and on account of rash and negligent driving of the driver of the vehicle No. UP 70-CQ/5758 the accident occurred and on account of the same, the opposite party No. 5 namely Vivek Upadhyay and deceased Vijay Kumar Singh sustained injuries and on account of the injuries sustained by deceased Vijay Kumar Singh, he succumbed.
After exchange of pleadings, the Tribunal framed the following issues:-
"1- D;k dfFkr nq?kZVuk ds fnukad 16-12-2014 dks le; yxHkx 09-50 cts lqcg LFkku ds0,u0vkbZ0 xsV ls QStkckn dh rjQ ,d fdyksehVj ogn xzke pkaniqj lSnh iV~Cg jk"Vªh; jktekxZ lqyrkuiqj ckbZikl ekxZ ij vUrxZr Fkkuk xks'kkbxat ftyk lqyrkuiqj esa okgu la[;k ;w0ih0&70 lh0D;w0@5758 LohQ~V fMtk;j oh0Mh0vkbZ0 dkj ds pkyd }kjk ykijokgh o mis{kkiw.kZ rjhds ls okgu dks pykrs gq, okgu la[;k ;w0ih0&42 vkj@2049 LohQ~V oh0,Dl0vkbZ0 esa VDdj ekj fn;k ftlls mlesa cSBs fot; dqekj flag dks xEHkhj pksVsa vk;ha ftudh bykt ds nkSjku e`R;q gks x;hA 2- D;k iz'uxr nq?kZVuk esa okgu la[;k ;w0ih0&70 lh0D;w0@5758 o ;w0ih0&42 vkj@2049 dk va'knk;h nkf;Ro dk nks"k gS \ 3- D;k iz'uxr nq?kZVuk esa okgu la[;k&;w0ih0&70 lh0D;w0@5758 foi{kh la[;k&1 }kjk nq?kZVuk ds le; o fnukad dks oS/k o izHkkoh :i ls chfer Fkk \ 4- D;k okgu la[;k ;w0ih0&70 lh0D;w0@5758 ds pkyd ds ikl iz'uxr nq?kZVuk ds le; oS/k ,oa izHkkoh pkyd ykblsal Fkk \ 5- D;k iz'uxr nq?kZVuk esa okgu la[;k ;w0ih0&42 vkj@2049 foi{kh la[;k&1 }kjk nq?kZVuk ds fnukad o le; ij oS/k o izHkkoh :i ls chfer Fkk \ 6- D;k iz'uxr nq?kZVuk ds le; okgu la[;k ;w0ih0&42 vkj@2049 ds pkyd ds ikl oS/k o izHkkoh pkyd ykblsal Fkk \ 7- D;k ;kphx.k izfrdj ikus ds vf/kdkjh gSa \ ;fn gka] fdl foi{kh ls vkSj fdruh /kujkf'k \"
The Tribunal after considering the relevant evidence/material on record including the statements recorded by the witnesses produced by the respective parties, decided all the issues in favour of the claimants.
There is no quarrel regarding the findings recorded by the Tribunal on the issue Nos. 3 to 6, which relate to the validity of the documents viz. driving licence and insurance of the vehicles involved in the accident.
In view of the pleas/grounds taken in appeal i.e. FAFO No. 254 of 2016 filed by the claimants for enhancement of compensation, the finding on the issue No. 7 is required to be considered by this Court and in view of the pleas/grounds taken by the Company in the appeal i.e. FAFO No. 293 of 2016, the findings given by the Tribunal on the issue Nos. 1 and 2 are required to be considered by this Court.
Needless to say that the Company has challenged the judgment and award dated 24.12.2015, passed by the Tribunal on the main ground to the effect that the driver of vehicle bearing Registration No. UP 70-CQ/5758 insured by the Company, was not negligent and the Tribunal has erroneously recorded the perverse findings on the issues, framed by it related to negligence of the vehicles involved in the accident. The plea of contributory negligence has also been taken while challenging the judgment and award passed by the Tribunal dated 24.12.2015. The Company has also assailed the amount of compensation awarded by the Tribunal on the ground to the effect that the claimants failed to prove the income of the deceased.
The award, in issue, has not been assailed by other opposite parties, who were impleaded before the Tribunal.
Learned counsel for the Company while challenging the judgment and award dated 24.12.2015, passed by the Tribunal has vehemently placed reliance on the Site Plan of accident. On the basis of Site Plan, the learned counsel for the Company submitted that the driver of the vehicle, insured by the Company, bearing Registration No. UP 70-CQ/5758 was not solely negligent and it is a case of head on collision and both the drivers of the vehicles involved in the accident were negligent and on account of the same, the accident took place on 16.12.2014 and accordingly, the finding of the Tribunal holding the driver of the vehicle, insured by the Company, negligent is perverse and the Tribunal wrongly fasten the liability on the Company to pay the compensation to the claimants.
It has been further submitted that on the basis of unproved documents, which were filed to prove the income of the deceased, the Tribunal awarded the compensation.
Per contra, learned counsel for the claimants/respondents in appeal i.e. FAFO No. 293 of 2016 submitted that the deceased at the time of accident was 35 years old and he was not driving the Car. The deceased, at the time of accident, was the Assistant Professor in KNIPSS and was getting Rs. 35,000/- per month as salary. To prove the salary of the deceased, the salary certificates and form-16 were filed before the Tribunal and the amount of salary, which the deceased was getting prior to his death, was duly proved by the documents as well as the claimant witness-CPW-3, Sri Dinesh Chandra, who was also an Assistant Professor in KNIPSS. On the basis of the document of evidence related to the income of the deceased as well as the testimony of CPW-3, Sri Dinesh Chandra, the Tribunal recorded the finding to the effect that the deceased was getting Rs. 35,000/- per month as salary at the time of his death and accordingly, the compensation was calculated and awarded by the Tribunal. However, the compensation, as awarded by the Tribunal, is liable to be enhanced in view of the law settled by the Hon'ble Apex Court in the cases of National Insurance Company Ltd. Vs. Pranay Sethi reported in (2017) 4 TAC 673(SC): AIR 2017 SC 5157 and Magma General Insurance Company Ltd. Vs. Nanu Ram reported in 2018 SCC Online SC 1546.
In regard to the issue related to negligence raised by the learned counsel for the Company, learned counsel for the claimants submitted that with regard to accident which took place on 16.12.2014, the FIR was lodged and after due investigation in the criminal case, charge sheet was also filed, which is a proof of negligent driving of the driver of the vehicle No. UP 70-CQ/5758.
It is further submitted that after considering the site plan as well as other documents including the charge sheet and the oral testimony of the witnesses, the Tribunal recorded a specific finding that the driver of the vehicle insured with Company was negligent. The Tribunal while recording the specific finding with regard to negligent driving of the driver of the vehicle No. UP 70-CQ/5758 has taken note of the evidence recorded by the ocular/eye witnesses.
It has also been submitted that the Site Plan was taken into consideration by the Tribunal while recording the finding that the driver of the vehicle No. UP 70-CQ/5758 was negligent on the date of accident. A perusal of the Site Plan would show that the vehicle No. UP 42-R/2049, in which the deceased was travelling was on his proper side and on account of negligent driving of the vehicle No. UP 70-CQ/5758, the accident took place. The vehicle No. UP 42-R/2049 was being driven from South to North and the vehicle No. UP 70-CQ/5758, insured with the Company, collided with the vehicle No. UP 42-R/2049, in which the deceased was travelling and which was on its side. The ocular witness CPW-2 Sri Rahul Pal, categorically stated that the vehicle insured with the Company was negligent.
The prayer is to dismiss the appeal filed by the Company and allow the appeal of claimants.
In rebuttal, learned counsel for the Company while opposing the appeal filed by the claimants-respondents for enhancement of compensation submitted that the Tribunal has rightly awarded the compensation as such, the same is not liable to be interfered with.
We have considered the submissions made by learned counsel(s) for the parties and perused the record.
In view of the submissions made by the learned counsel(s) for the parties, the following two points are to be considered in both the appeals.
(i) Whether the Tribunal has rightly held that the driver of the vehicle bearing Registration No. UP 70-CQ/5758 was negligent.
(ii) Whether the amount awarded by the Tribunal is as per law.
First, we are dealing with FAFO No. 293 of 2016 filed by the Company with the prayer to set aside the judgment and award dated 24.12.2015, passed by the Tribunal and Point No. 1, determined above.
The plea which has been pressed, taken in the appeal filed by the Company and argued by the learned counsel for the Company is to the effect that the driver of the vehicle, insured with the Company, was not solely negligent and it is a case of contributory negligence and as such, the Tribunal has erroneously recorded the perverse findings in regard to negligence of the driver of the vehicle, insured with the Company and accordingly, the Tribunal wrongly fasten the liability on the Company to pay the compensation to the claimants.
On this aspect of the case, we have considered the record of the Tribunal as well as the findings recorded on the issue nos.1 and 2, wherein the Tribunal has recorded the findings with regard to negligence of the driver of the vehicle No. UP 70-CQ/5758.
It appears from the judgment and award dated 24.12.2015 that while holding/recording the findings that the driver of the vehicle insured with the Company was negligent and on account of his rash and negligent driving, the accident took place and husband of appellant No. 3 expired due to injuries sustained in the said accident, the Tribunal considered the statements of ocular witness namely Sri Rahul Pal, who was travelling in the Car with the deceased, and also considered the documentary evidence i.e. Site Plan and Charge Sheet filed in Criminal Case against the driver of the vehicle No. UP 70-CQ/5758.
It is borne out from the statement given by CPW-2, Sri Rahul Pal, that the accident took place on account of negligent driving of the driver of vehicle No. UP 70-CQ/5758. In cross-examination, he has not made any contradictory statement to what was stated by him in examination-in-chief. Nothing adverse was elicited in cross-examination.
From the conjoint reading of the statement given by the CPW-2, Sri Rahul Pal, in examination-in-chief and in cross-examination, it is apparent that the driver of the vehicle No. UP 70-CQ/5758 was negligent. For the purposes of arriving at conclusion on the finding of negligence given by the Tribunal while deciding the issue nos.1 and 2, we have also taken note of Site Plan and charge sheet filed against the driver of the vehicle No. UP 70-CQ/5758.
From the Site Plan prepared by the Police Official, it is apparent that the vehicle No. UP 42-R/2049 was being driven from North to South and the same was on the proper side of the road and the vehicle No. UP 70-CQ/5758 was being driven from South to North and on account of the negligent driving of the driver of the vehicle No. UP 70-CQ/5758, the accident took place.
It also appears from the judgment and award dated 24.12.2015 passed by the Tribunal, that the Tribunal considered the statement of ocular witness and other relevant documents on record and thereafter recorded a specific finding to the effect that the driver of the vehicle was negligent. The relevant portion of the judgment and award dated 24.12.2015, which on reproduction reads as under:-
"fuLrkj.k okn foUnq la[;k&1 mDr okn foUnq bl vk'k; dk fojfpr fd;k x;k gS fd D;k dfFkr nq?kZVuk ds fnukad 16-12-2014 dks le; yxHkx 09-50 cts lqcg LFkku ds0,u0vkbZ0 xsV ls QStkckn dh rjQ ,d fdyksehVj ogn xzke pkaniqj lSnh iV~Vh jk"Vªh; jktekxZ lqyrkuiqj ckbZikl ekxZ ij vUrxZr Fkkuk xks'kkbZxat ftyk lqyrkuiqj esa okgu la[;k ;w0ih0&70 lh0D;w0@5758 fLoQ~V fMtk;j oh0Mh0vkbZ0 dkj ds pkyd }kjk ykijokgh o mis{kkiw.kZ rjhds ls okgu dks pykrs gq, okgu la[;k ;w0ih0&42 vkj@2049 fLoQ~V oh0,Dl0vkbZ0 esa VDdj ekj fn;k ftlls mlesa cSBs fot; dqekj flag dks xEHkhj pksVsa vk;ha ftudh bykt ds nkSjku e`R;q gks x;h \ bl okn foUnq dks lkfcr djus dk Hkkj ;kphx.k ij gSA bl lEcU/k esa ;kphx.k dh rjQ ls lh-ih-MCyw- 1 Jherh 'osrk flag] lh-ih-MCyw- 2 jkgqy iky ,oa lh-ih-MCyw- 3 fnus'k pUnz dks ijhf{kr djk;k x;k gSA lh-ih-MCyw-1 Jherh 'osrk flag] lh-ih-MCyw- 2 jkgqy iky ,oa lh-ih-MCyw- 3 fnus'k pUnz us vius eq[; ijh{kk esa yxHkx ,d leku lk{; nsrs gq, dFku fd;k gS fd fnukad 16-12-2014 dks le; djhc 9-45 cts lqcg ds-,u-vkbZ- xsV ls QStkckn dh rjQ ,d fdyksehVj cgn xzke pkaniqj lSnh iV~Vh jk"Vªh; jktekxZ lqYrkuiqj ckbZikl ekxZ ij vUrxZr Fkkuk xks'kkbZxat] ftyk lqYrkuiqj tc e`rd fot; dqekj flag vius vU; fe=ksa ds lkFk fe= foosd mik/;k; dh ek:fr fLo¶V dkj la0 ;w-ih- 42 vkj@2049 ij cSB dj ds-,u-vkbZ-ih-,l-,l- lqYrkuiqj lM+d dh cka;h fn'kkk ls lkekU; xfr ls tk jgs Fks mDr ek:fr foosd mik/;k; pyk jgs FksA nq?kZVuk LFky ij igqaps fd foijhr fn'kk ls vkrh gqbZ ,d fLo¶V ek:fr dkj la[;k ;w-ih-70 lh-D;w-@5758 ds pkyd mDr okgu dks dkQh rst xfr] ykijokgh] vlko/kkuh ,oa mis{kkiw.kZ rjhds ls xyr fn'kk ls vkdj foosd mik/;k; dh fLo¶V dkj esa VDdj ekj fn;k ftlls vU; yksxksa ds lkFk gh lkFk fot; dqekj flag dks xEHkhj pksVsa vk;h vkSj vkl ikl ds yksxksa ds }kjk ?kk;y voLFkk esa fot; dqekj flag ftyk fpfdRlky; lqYrkuiqj esa HkrhZ djk;k tgka bykt ds nkSjku mldh e`R;q gks x;hA ?kVuk ds izR;{kn'kkhZ lk{kh lh-ih-MCyw- 2 jkgqy iky tks Lo;a pksVfgy Hkh jgsa gS }kjk vius eq[; ijh{kk esa blh vk'k; dk dFku djrs gq, ;g dgk x;k gS fd fLo¶V fMtk;j dkj la[;k ;w0ih070lh-D;w-@5758 ds pkyd }kjk mDr okgu dks dkQh rst ykijokgh ,oa vlko/kkuh o mis{kkiw.kZ rjhds ls xyr fn'kk esa pykrs gq, vkdj foosd mik/;k; ds dkj la[;k ;w0ih0 42vkj@2049 fLo¶V dkj esa VDdj ekj fn;k ftlls ge yksxksa dks dkQh pksVsa vk;h] vkl ikl ds yksxksa }kjk ftyk fpfdRlky; lqYkrkuiqj esa HkrhZ djk;k x;k tgka fot; dqekj flag dh e`R;q gks x;hA bl nq?kZVuk dks eSaus viuh vka[k ls ns[kk gS vkSj nq?kZVuk fLo¶V dkj fMtk;j la0 ;w0ih0 70 lh-D;w-@5758 ds pkyd dh ykijokgh ds dkj.k gqbZA izfri`PNk esa bl lk{kh ds }kjk ;g dgk x;k gS fd nq?kZVuk ds le; eSa ogka ekStwn Fkk eSaus ns[kk fd okgu ;w-ih- 70 lh-D;w-@5758 dk pkyd ,d Vªd dks vksojVsd djrs gq, xyr fn'kk esa rsth o ykijokgh ls okgu la[;k ;w0ih0 42 vkj@2049 dks VDdj ekj fn;k tc fd ;w-ih- 42 vkj@2049 dk pkyd lgh fn'kk ls cka;h rjQ lkekU; xfr ls tk jgk Fkk okgu la[;k ;w-ih- 42 vkj@2049 cqjh rjQ ls {kfrxzLr gks x;h FkhA eSa ?kVuk ds le; gks'k esa Fkk e`rd fot; dqekj flag dks vLirky dkyst ds okgu ls ys x;k Fkk eSa ogka HkrhZ gqvk Fkk ogka ls rqjUr eq>s ds-th-,e-;w- VªkeklsUVj jsQj dj fn;k x;k FkkA fot; dqekj flag dh lqYrkuiqj ftyk vLirky esa gh e`R;q gks x;hA i=koyh esa nLrkosth lk{; ds :i esa ;kphx.k dh vksj ls lwph 6x2@1 ls Nk;kizfr izFke lwpuk fjiskVZ 6x@2] e`rd fot; dqekj flag dh 'ko foPNsnu vk[;k dh Nk;kizfr 6x@4 rk 6] lwph 23x@3 ds ek/;e ls izekf.kr izfr izFke lwpuk fjiksVZ 24x@1&2] fot; dqekj flag dh iksLVekVZe fjiksVZ 24x@4&7] iapukek 24x@8&10] uD'kk utjh 24x@11&12] rduhdh fjiksVZ okgu la[;k ;w0ih0 42&vkj@2049 24x@13&14] rduhdh fjiksVZ okgu la[;k ;w0ih0&70 lh0D;w0@5758 24x@16&17] vkjksi i= 24x@18 fo:) fl)kFkZ feJk v0la0 550@2014] vUrxZr /kkjk 279] 337] 338] 304 , Hkk-n-la- Fkkuk xks'kkbZxat] ftyk lqYrkuiqj nkf[ky fd;k x;k gSA ftlds voyksdu ls Li"V gksrk gS fd e`rd fot; dqekj dh e`R;q nq?kZVuk esa gh fnukad 16-12-2014 dks izkr% 9-50 cts okgu la[;k ;w0ih042 vkj@2049 ,oa okgu la[;k ;w0ih070 lh-D;w-@5758 esa gq, VDdj ds ifj.kke Lo:i gqbZ gS] bldh iqf"V 'ko foPNsnu fjiksVZ dkxt la[;k 24x2@4 yxk;r 24x2@7 ls Hkh gksrh gS vkSj blh vk'k; dk vfHkdFku ;kphx.k dh vksj ls ijhf{kr rhuksa lkf{k;ksa us Hkh vius ekSf[kd lk{; esa fd;k gSA 'ko foPNsnu vk[;k esa e`rd fot; dqekj dh mez yxHkx 35 o"kZ nf'kZr dh x;h gS 'ko foPNsnu vk[;k esa e`R;q dk dkj.k nq?kZVuk esa vk;h pksVksa dks nf'kZr fd;k x;k gSA e`rd fot; dqekj flag ds 'ko dk foPNsnu 4-20 lka; fd;k tkuk vafdr gSA bl izdkj i=koyh ij miyC/k lh-ih-MCyw- 1 Jherh 'osrk flag] lh-ih-MCyw- jkgqy iky dh lk{;] izFke lwpuk fjiksVZ] vkjksi i= ,oa 'ko foPNsnu vk[;k rFkk uD'kk utjh vkfn ds ifj'khyu ls U;k;kf/kdj.k dk ;g vfHker gS fd fnukad 16-12-2014 dks le; 9-50 cts izkr% ds-,u-vkbZ- xsV ls QStkckn dh rjQ ,d fdyksehVj cgn xzke pkaniqj lSnh iV~Vh jk"Vªh; jktekxZ lqYrkuiqj ckbZikl ekxZ ij okgu la[;k ;w-ih- 70 lh-D;w-@5758 fLo¶V fMtk;j oh-Mh-vkbZ- dkj ds pkyd }kjk rst xfr ykijokgh ,oa mis{kkiw.kZ rjhds ls okgu dks pyrs gq, okgu la[;k ;w-ih-42vkj@2049 fLo¶V oh-,Dl-vkbZ- esa VDdj ekj fn;k ftlds ifj.kke Lo:i mlesa cSBs fot; dqekj flag dks xEHkhj pksVsa vk;ha ftlds dkj.k mlh fnu fot; dqekj flag dh e`R;q gks x;hA rnuqlkj ;g okn foUnq ldkjkRed :i ls ;kphx.k ds i{k esa fu.khZr fd;k tkrk gSA fuLrkj.k okn fcUnq la[;k % 2 mDr okn foUnq bl vk'k; dk fojfpr fd;k x;k gS fd D;k iz'uxr nq?kZVuk esa okgu la[;k ;w-ih-70 lh-D;w-@5758 o ;w-ih-42vkj@2049 dk va'knk;h nkf;Ro dk nks"k gS \ tgka rd ;kphx.k dk iz'u gS] ;kphx.k dh vksj ls ijhf{kr lh-ih-MCyw- 1 Jherh 'osrk flag ,oa lh-ih-MCyw- 2 jkgqy iky }kjk vius eq[; ijh{kk esa ;g dFku fd;k x;k gS fd okgu la[;k ;w-ih-42vkj@2049 ek:fr fLo¶V dks foosd mik/;k; }kjk pyk;k tk jgk Fkk vkSj foosd mik/;k; mDr okgu dks lkekU; xfr ls lko/kkuhiwoZd pyk jgs Fks] okgu la[;k ;w-ih-70 lh-D;w-@5758 ds pkyd us vlko/kkuh] mis{kkiw.kZ rjhds ls rst xfr ls pykrs gq, ;w-ih-42vkj@2049 esa VDdj ekj fn;kA lh-ih-MCyw- 2 jkgqy iky us vius ftjg esa tc vks0ih0MCyw0 4 o 5 ds fo}ku vf/koDrk }kjk ftjg dh x;h rks ;g dFku fd;k x;k fd ;w-ih-70 lh-D;w-@5758 ds pkyd }kjk Vªd dks vksojVsd djrs gq, ;w-ih-42vkj@2049 esa VDdj ekj fn;k x;kA bldk mYys[k bl Lrj ij blfy, fd;k tk jgk gS fd foi{khx.k }kjk Lo;a vks0ih0MCyw01 foosd mik/;k; dks ijhf{kr djk;k x;k gS vkSj vks-ih-MCyw01 us Hkh vius c;ku esa Lo;a ds }kjk okgu la[;k ;w-ih-42vkj@2049 dks lko/kkuhiwoZd pyk;s tkus dh ckr dgrs gq, nq?kZVuk ;w-ih-70lh-D;w-@5758 fLo¶V dkj ds pkyd dh ykijokgh ds dkj.k ?kfVr gksus dh ckr dgh x;h gSA tgka rd foi{khx.k dh vksj ls izLrqr lk{kh fl)kFkZ feJk dk iz'u gS mlds }kjk vius ftjg fnukad 16-10-2015 dks fn;s x;s c;ku esa ;g dFku fd;k x;k gS fd bl nq?kZVuk esa lkjh ykijokgh ;w-ih-42vkj-@2049 ds pkyd dh gS] dgus dk rkRi;Z ;g gS fd nksuksa gh okguksa ;w-ih- 42vkj@2049 ds pkyd ,oa ;w-ih-70lh-D;w-@5758 ds pkyd }kjk ,d nwljs dks mis{kkiw.kZ rjhds ls okgu pyk;s tkus dh ckr dgh x;h gSA bl Lrj ij nLrkosth lk{; egRoiw.kZ gks tkrh gS rFkk nLrkosth lk{; ds :i esa uD'kk utjh lwph 24x2@12 nkf[ky gS ftlesa Þ,ß LFkku ij nq?kZVuk dks ?kfVr gksuk nf'kZr fd;k x;k gS tks okgu la[;k ;w0ih070 lh-D;w-@5758 ds pyus okys fn'kk ds nkfgus rjQ iM+rk gS vkSj okgu la[;k ;w-ih-42vkj@2049 ds ck;ha rjQ iM+rk gSA tks Lo;a gh ;g nf'kZr djrk gS fd nq?kZVuk tks ?kfVr gqbZ gS og okgu la[;k ;w0ih070lh-D;w-@5758 ds lM+d ds nkfgus rjQ tkus ds dkj.k gqbZ gS tks Lo;a gh ;w0ih070lh-D;w-@5758 ds pkyd }kjk okgu dks mis{kkiw.kZ rjhds ls pyk;k tkuk nf'kZr djrk gSA vr% mijksDr ifjfLFkfr;ksa esa lk{;ksa ds ifj'khyu ls ;g Li"V gS fd ?kVuk dkfjr gksus esa okgu la[;k ;w0ih070lh-D;w-@5758 ds pkyd }kjk ykijokgh ,oa mis{kkiw.kZ rjhds ls okgu dks pyk dj nq?kZVuk dkfjr fd;k x;kA rnuqlkj mDr okn fcUnq fu.khZr fd;k tkrk gSA"
The Hon'ble Apex Court in the judgment passed in the case of Sunita & others v. Rajasthan State Road Transport Corporation reported in 2019 SCC OnLine SC 195, wherein the issue related to negligence was involved, has observed that while dealing with cases arising out of motor vehicle accidents, the standard of proof to be borne out in mind must be preponderance of probability and not the strict standard of proof beyond reasonable doubt which is followed in Criminal Case. The Hon'ble Apex Court, in judgment, also taken note of importance of cross-examination. The relevant paras of the judgment on reproduction read as under:-
"20. This is the only analysis/discussion in the entire judgment to reverse the exhaustive analysis done by the Tribunal to which we have set out in brief in paragraphs 5 to 9 above. The thrust of the reasoning given by the High Court rests on the unreliability of the witnesses presented by the appellants: first, that the evidence given by Bhagchand (A.D.2) was unreliable because he was not shown as a witness in the list of witnesses mentioned in the charge sheet filed by the police and that the said witness could not identify the age of the pillion rider, Rajulal Khateek. Second, the said pillion rider himself, Rajulal Khateek, who was the "best" witness in the matter, was not presented for examination by the appellants. The High Court also relies on the site map (Exh.3) to record the finding on the factum of negligence of the deceased Sitaram in causing the accident which resulted in his death.
21. We have no hesitation in observing that such a hyper-technical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in Mangla Ram v. Oriental Insurance Company Limited(2018) 5 SCC 656, (to which one of us, Khanwilkar, J. was a party), this Court has restated the position as to the approach to be adopted in accident claim cases. In that case, the Court was dealing with a case of an accident between a motorcycle and a jeep, where the Tribunal had relied upon the FIR and charge-sheet, as well as the accompanying statements of the complainant and witnesses, to opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on the document forming part of the police record was insufficient to arrive at such a finding. Disapproving that approach, this Court, after adverting to multitude of cases under the Act, noted as follows:
"22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus: (SCC pp. 533-34) "11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition.
12. The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the Court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
(emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
23. Following the enunciation in Bimla Devi case, this Court in Parmeshwari v. Amir Chand(2011) 11 SCC 635 noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case, SCC p. 638) "12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. ..."
24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal(1980) 3 SCC 457, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59) "3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard."
25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta(2011) 10 SCC 509, has been adverted to as under: (Dulcina Fernandes case, SCC p. 650) "8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ''10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
***
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) ''10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.'"
In para 10 of Dulcina Fernandes, the Court opined that non-examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
31. The importance of cross-examining a witness has been elucidated by this Court on several occasions, notably in Kartar Singh v. State of Punjab,(1994) 3 SCC 569 where a Five-Judge Bench of this Court elaborated:
"278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
279. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party."
(emphasis supplied) Taking note of observation of the Hon'ble Apex Court in the judgment passed in the case of Sunita (supra) and the statement of ocular witness and documents on record i.e. Site Plan and Charge Sheet filed in the Criminal Case against the driver of the vehicle insured with the Company, we are of the view that Tribunal rightly held that in the accident, in issue, the driver of the vehicle insured with the Company was negligent. The point no. (i) is decided accordingly against the Company.
In regard to point no. (ii), which relates to grant of compensation by the Tribunal, we have considered the material available on record and reasons for conclusion arrived at by the Tribunal in granting the compensation.
It appears from the record that in support of the income of the deceased at the time of accident i.e. Rs. 35,000/- per month, pleaded in the claim petition, the claimants before the Tribunal filed the form-16 as well as the salary certificates of the deceased. To prove the income of the deceased, the witness CPW-3 Sri Dinesh Chandra, who was also an Assistant Professor in KNIPSS, categorically made the statement that the deceased was getting Rs. 35,000/- per month as salary and at the time of death, he was holding the post of Assistant Professor. The said witness also stated that the salary certificates bears the signature of the Director of the Institute namely KNIPSS. In addition to the salary certificates and Form-16, the claimants before the Tribunal also filed the details of account of the deceased in the Punjab National Bank and it is evident therefrom that the deceased was getting Rs. 35,000/- per month as salary. The relevant entries are w.e.f. 12.05.2014 to 09.01.2015 and in the instant case, the accident took place on 16.12.2014.
It appears from the record that the Tribunal while recording the finding on the income of the deceased considered the relevant documents and statement made by the co-employee Sri Dinesh Chandra, appeared as CPW-3 and made a categorical statement on the issue of income of the deceased and also proved the income certificate by stating that the income certificate bears the signature of the Director of the Institute namely KNIPSS. The relevant portion of the judgment and award, under appeal, on reproduction reads as under:-
"tgka rd izfrdj dk iz'u gS rks izfrdj ds fu/kkZj.k gsrq e`rd dh vk;q ,oa vk; dk fu/kkZj.k fd;k tkuk U;k;ksfpr gksxkA e`rd fot; dqekj flag dh mez ;kfpdk esa 35 lky nf'kZr dh x;h gSaA ;kphx.k dh vksj ls vius dFku ds leFkZu esa fnukad 18-12-2015 dks lwph 54x ds ek/;e ls ewy izek.k i= gkbZ Ldwy ijh{kk dkxt la[;k 54x@2 tks e`rd fot; dqekj flag dk jgk gS] dks nkf[ky fd;k x;k gS ftlesa e`rd fot; dqekj flag dh tUe frfFk 01-01-1979 vafdr gS mDr ds lkFk gh lkFk i=koyh ij iksLVekVZe fjiksVZ dkxt la[;k 24x@4 rk 24x@7 Hkh nkf[ky fd;k x;k gS ftlesa e`rd fot; dqekj flag dh mez yxHkx 35 lky nf'kZr dh x;h gSA i=koyh ij e`rd dh mez 35 lky u gksus ds [k.Mu esa dksbZ lk{; fdlh Hkh i{k ds }kjk nkf[ky ugha fd;k x;k gSA vr% tc i=koyh ij Lo;a e`rd dh gkbZ Ldwy ijh{kk izek.k i= dh ewy izfr gh nkf[ky gS vkSj mlesa fnukad 01-01-1979 mldh tUefrfFk vafdr gS rks bl fnukad ls Hkh e`rd dh mez yxHkx 35 lky nf'kZr gksrh gS] vr% mDr rF;ksa ,oa ifjfLFkfr;ksa esa e`rd dh vk;q 31&35 lky ds e/; ekuuk U;k;ksfpr gksxkA tgka rd e`rd fot; dqekj flag ds vk; dk iz'u gS bl lac/k esa e`rd dh iRuh Jherh 'osrk flag }kjk vius eq[; ijh{k.k esa bl vk'k; dk dFku fd;k x;k gS fd nq?kZVuk ds le; esjs ifr deyk usg: baLVhV~;wV vkQ eSustesaV ,.M VsDuksykth QsdsYVh vkQ QkesZlh ,u-,p-16] QStkckn ckbZ ikl jksM Qjhnhiqj lqYrkuiqj esa lgk;d izksQslj ds in ij dk;Zjr Fks tks eq0 35]000#0 izfrekg osru izkIr djrs Fks ftlds lEcU/k esa izek.k i= dkxt la0 6x@22 i=koyh ij nkf[ky Hkh fd;k x;k gSA blh vk'k; dk dFku lh-ih-MCyw- 2 jkgqy iky }kjk Hkh vius eq[; ijh{kk esa djrs gq, dgk x;k gS fd eSa e`rd fot; dqekj flag ds lkFk ds-,u-vkbZ- lqYrkuiqj esa i<+rk Fkk eSa bl le; Hkh i<+k jgk gw¡A lh-ih-MCyw- 3 ds :i esa ijhf{kr fnus'k pUnz us Hkh vius eq[; ijh{kk esa e`rd fot; dqekj flag dks vius lkFk ds-,u-vkbZ-ih-ih-,l- esa lgk;d izksQslj ds in ij dk;Zjr gksus rFkk o"kZ 2014&15 esa 35]000#0 izfrekg osru izkIr djus dh ckr dgk gSA lh-ih-MCyw-3 }kjk i=koyh esa nkf[ky dkxt la-31x@2 rk 31x2@4 osru izek.k i= dks ns[k dj ;g dgk x;k fd mDr izek.k i= funs'kd }kjk tkjh fd;k x;k gS fd ftl ij esjs funs'kd dk gLrk{kj gS mDr ds lkFk gh ;g Hkh mYYks[kuh; gS fd ;kphx.k dh vksj ls Hkh lwph 30x ds ek/;e ls dkxt la0 31x@2 rk 31x@4 ds :i esa izek.k i= ds-,u-vkbZ-] lqYrkuiqj dk nkf[ky fd;k x;k gS ftlesa 20-12-2012&13] 2013&14] 2014&15 dks e`rd dks izkIr gksus okys osru dh vaduk gS ftlds voyksdu ls e`rd 2014&15 esa eq0 35]000#0 izfrekg osru ik jgk Fkk] ;g nf'kZr gS lkFk gh [kkrk la[;k 3914000400190098vkbZ ,u vkj 391400 ,dkmUV ystj iatkc us'kuy cSad dkxt la[;k 44x@2 rk 44x@9 ds :i esa nkf[ky fd;k x;k gS ftlesa fnukad 12-05-2014 ls fnukad 09-01-2015 rd e`rd ds [kkrk esa eq0 35]000#0 izfr ekg okbZ VªkalQj osru ds :i esa nf'kZr fd;k x;k gS] vr% mijksDr izi=ksa rFkk lh-ih-MCyw01 ,oa lh-ih-MCyw03 fnus'k pUnz ds lk{;ksa ds ifj'khyu ls bl Lrj ij ;g U;k;kf/kdj.k bl vfHker dk gS fd e`rd fot; dqekj flag dks o"kZ 2014&2015 esa eq0 35]000 #0 izfrekg osru ds-,u-vkbZ-ih-ih-,l- esa izkIr gqvk Fkk vkSj og ,d dq'ky f'k{kd ds :i esa dk;Zjr jgs gSaA bl vk/kkj ij e`rd fot; dqekj dh vk; ¼ml fLFkfr esa tc fd foi{khx.k mlds [k.Mu esa dksbZ lk{; miyC/k djkus esa vleFkZ jgs gSa½ eq0 35]000:0 izfrekg ekuk tkuk U;k;ksfpr gksxkA"
In view of the above, we are of the view that the findings recorded by the Tribunal on the issue of income of the deceased is perfectly valid and requires no interference by this Court.
Now coming to the question which is to the effect that whether the amount awarded requires enhancement or not, we have to consider the judgment and award under appeal dated 24.12.2015 in the light of the principles settled by the Hon'ble Apex Court in the cases of Pranay Sethi (supra) and Magma General Insurance Company Ltd. (supra).
It appears from the record that the deceased was an Assistant Professor and undisputedly at the time of accident he was getting salary to the tune of Rs.35,000/-, which was considered by the Tribunal. Thus, Tribunal has rightly considered the income of the deceased for the purposes of awarding compensation.
Considering the age of the deceased i.e. between 31 and 35, the Tribunal applied the multiplier of 16, which is as per the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation, AIR 2009 SC 3104, taken note of and approved by the Hon'ble Apex Court in paras 10, 44 and 61 of the judgment passed in the case of Pranay Sethi (supra). Thus, the Tribunal rightly applied the multiplier of 16.
For computing the compensation, the Tribunal deducted 1/3 from the income of the deceased. Thus, in our view, the Tribunal, keeping in view the number of dependents/claimants i.e. three, has rightly deducted 1/3 from the income of the deceased for awarding compensation. The deduction made by the Tribunal is in consonance with the observations made by the Hon'ble Apex Court in the judgment passed in the case of Pranay Sethi (supra).
Towards conventional heads, namely, loss of estate, loss of consortium and funeral expenses, the Tribunal has awarded Rs.10,000/-, Rs.10,000/- and Rs.5,000/- and on the amount awarded, the Tribunal has granted simple interest @ 7% per anuum.
The Hon'ble Apex Court in the judgment passed in the case of Magma General Insurance Company Ltd. (supra), observed as under:-
"8.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.
8.5. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses.
The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :
"Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years."
(Emphasis supplied) As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs. 15,000.
The amount awarded by the High Court towards loss of love and affection is, however, maintained.
8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).
The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.
In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses ''spousal consortium', ''parental consortium', and ''filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh v. Rajbir Singh, (2013) 9 SCC 54.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation."Black's Law Dictionary (5th ed. 1979).
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. Rajasthan High Court in Jagmala Ram @ Jagmal Singh v. Sohi Ram 2017 (4) RLW 3368 (Raj); Uttarakhand High Court in Smt. Rita Rana v. Pradeep Kumar 2014 (3) UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, (1996) 3 Kant LJ 570 (DB).
However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ''Loss of Consortium' as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.
11. In light of the above mentioned discussion, Respondent Nos. 1 and 2 are entitled to the following amounts :--
Head Compensation awarded i. Income:
Rs. 6,000 ii. Future Prospects:
Rs. 2,400 (i.e. 40% of the income) iii. Deduction towards personal expenditure:
Rs. 2,800 [i.e. 1/3rd of (Rs. 6,000 + Rs. 2,400) iv. Total Income:
Rs. 5,600 [i.e. 2/3rd of (Rs. 6,000 + Rs. 2,400] v. Multiplier:18
vi. Loss of future income:
Rs. 12,09,600 (Rs. 5,600 × 12 × 18) vii. Loss of love and affection:
Rs. 1,00,000 (Rs. 50,000 each) viii. Funeral expenses:
Rs. 15,000 ix. Loss of estate:
Rs. 15,000 x. Loss of Filial Consortium:
Rs. 80,000 (Rs. 40,000 payable to each of Respondent Nos. 1 and 2) Total compensation awarded:
Rs. 14,25,600 alongwith Interest @ 12% p.a. from the date of filing of the Claim petition till payment.
Out of the amount awarded, Respondent No. 1 is entitled to 60% while Respondent No. 2 shall be granted 40% alongwith Interest as specified above."
Considering the observation made by the Hon'ble Apex Court in the judgment passed in the cases of Pranay Sethi (supra) and Magma General Insurance Company Ltd. (supra) and the amount under the conventional heads awarded by the Tribunal namely loss of estate (Rs. 10,000/-), loss of consortium (Rs. 10,000/-) and funeral expenses (Rs. 5,000/-) as well as interest @ 7% per annum, we are of the view that judgment and award dated 24.12.2015, under appeal, is liable to be modified.
Accordingly, we modify the judgment and award dated 24.12.2015 in following terms only and except modification the rest of the judgment and award dated 24.12.2015 passed by the Tribunal would remain intact.
(a) Towards Loss of Estate- Rs. 15,000/-
(b) Towards Loss of Consortium- Rs. 1,20,000/- (Rs. 40,000/- for each legal heir)
(c) Towards Funeral Expenses- Rs. 15,000/-
Total= Rs. 1,50,000/-
In the aforesaid conventional heads, the Tribunal has awarded the total sum of Rs. 25,000/-. Accordingly, after substracting the said amount i.e. Rs. 25,000/- from the total amount which we have awarded in conventional heads i.e. Rs. 1,50,000/-, the amount which comes to is Rs. 1,25,000/-.
In view of the above, the total amount of compensation for which the claimants-appellants are entitled comes to Rs. 43,77,000+Rs. 1,25,000/- = 45,02,000/-.
On the total amount i.e. Rs. 45,02,000/-, the claimants-appellants of F.A.F.O. No. 254 of 2016 would be entitled to the interest @ 12% per annum from the date of filing of the Claim Petition, as awarded in the case of Magma General Insurance Company Ltd. (supra).
In above terms, the appeal filed by the claimants/appellants i.e. F.A.F.O. No. 254 of 2016 [Uday Pratap Singh And Ors. v. The New India Insurance Co. Ltd. and others] is partly allowed and for the reasons aforesaid, we dismiss the appeal filed by the Company i.e. FAFO No. 293 of 2016 [The New India Insurance Co. Ltd. v. Uday Pratap Singh And Ors.].
No order as to costs.
Order Date :- 10.01.2020 Arun/-