Madhya Pradesh High Court
Nani Bai And Ors. vs Ishaque Khan And Ors. on 11 December, 1993
Equivalent citations: 1995ACJ292
JUDGMENT R.D. Shukla, J.
1. The common questions of fact and law (excepting the quantum) are involved in Misc. Appeal Nos. 296 of 1986, 297 of 1986, 298 of 1986, 325 of 1986, 326 of 1986, 331 of 1986 and 332 of 1986, hence, the same, excepting the quantum, are being decided by this order.
2. Misc. Appeal No. 296 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 93 of 1981; Misc. Appeal No. 298 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 89 of 1981; Misc. Appeal No. 325 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 90 of 1981; Misc. Appeal No. 326 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 95 of 1981; Misc. Appeal No. 330 of 1986 arises out of the judgment and award dated 12.8.1986, passed in Claim Case No. 1 of 14.8.1986, passed in Claim Case No. 3 of 1982; Misc. Appeal No. 297 of 1986 arises out of the judgment and award dated 1982; Misc. Appeal No. 331 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 97 of 1981 and Misc. Appeal No. 332 of 1986 arises out of the judgment and award dated 29.8.1986, passed in Claim Case No. 96, by Member, Motor Accidents Claims Tribunal, West Nimar (Mandleshwar), whereby various amounts have been awarded as compensation to the claimants with a further direction that the insurance company is not liable to make payments as the agreement of insurance was void.
3. Brief history of the case is that motor bus No. MPO 3142 was being taken from village Nanda to Katargaon by respondent Ishaque Khan, who was the driver. The motor bus was owned by one Kartar Singh. The respondent Nos. 2 (a), (b), (c) and (d) are legal representatives of Kartar Singh. The motor bus was insured with respondent No. 3, the New India Assurance Co. Ltd. The respondent No. 4 was managing the affairs and looking after the motor bus. The driver Ishaque Khan while taking the bus as above reached the bank of river 'Malan', which is a tributary of river 'Narmada', it had a culvert. The water was flowing over the bridge with strong current. Despite objections by the passengers the motor bus driver plunged the bus in the water. The moment bus reached almost in the middle it was swept away with strong current of water. Some of the passengers could swim across and were saved by Home Guard personnel. Many passengers were swept away by current of the water and their bodies could also not be recovered. Mangi Lal , the husband of claimant-appellant No. 1 and father of claimant-appellant Nos. 2 to 8 who was also related as son to claimant-appellant Nos. 9 and 10 was also swept away in that strong current of water. His body could not be recovered.
4. Mangi Lal was the bread-winner of the family. He was earning nearly Rs. 10/- per day and he was aged about 40 years. The claimants, therefore, prayed for a compensation of Rs. 85,500/-.
The respondents contested the claim and pleaded that there was no negligence of driver. It was vis major. The river 'Malan' has a dam in the upper stream. The gates of the same were opened without notice to the residents of the area. The water current rose all of a sudden and took the bus in its grip and swept it away. The fact of Mangi Lal being a passenger in the bus was also denied. It was also contended that the bus was sold to respondent No. 4 without intimation to insurance company. It was also pleaded that the driver had no valid licence and the policy was purchased in the name of a dead person Kartar Singh and, therefore, the contract is void and company is not liable to make payment.
5. The learned Tribunal held that the accident happened due to negligent driving of the vehicle. Mangi Lal was a passenger in the bus, who died in the accident. Age of Mangi Lal was accepted to be 45 years. The dependency was assessed to Rs. 5/- per day, i.e., Rs. 1,800/- per year. By applying a multiplier of 10, Rs. 18,000/- was awarded as general damages and Rs. 3,000/- was awarded as damages for loss of consortium. As such a total of Rs: 21,000/- was awarded.
This accident occurred on 9.8.1981. Kartar Singh died somewhere in 1975. The premium was paid by the heirs of Kartar Singh, i.e., respondent Nos. 2 (a) to 2 (d), but taking it to be a contract with a dead person and that being void, the insurance company was exonerated of its liability. While granting awards of various amounts in all other cases referred above the insurance company was completely exonerated of its liability, as such, all the claimants have filed appeals contesting this finding of the Tribunal and further for enhancement of amount of compensation.
6. It appears no cross-appeal or cross-objections have been filed by respondents.
7. The contention of the learned Counsel for the appellants is that it is the motor bus that was insured. Insurance company having accepted the premium for all the years including for the year of accident cannot be allowed to raise this bogey of objection as to agreement with a dead person. The alternative contention of the learned Counsel for the appellants is that if any misrepresentation or concealment of fact has been done by respondent Nos. 2 (a) to 2 (d) and respondent No. 4, insurance company can recover the amount paid to claimants from these persons but the claimants cannot be deprived of their right of recovering the amount of compensation from the insurance company.
8. The third contention of the learned Counsel for the appellants is that the compensation has been estimated on the lower side as multiplier of 10 has been used and the same ought to have been of 15.
Learned counsel for the respondent, on the other hand, first tried to assail the fact of negligence in driving and thereafter submitted that since the agreement with dead person is void and, therefore, the insurance company is not liable to make payments. It has also been submitted that the primary responsibility of payment of compensation is on the owner of the vehicle and the insurer is liable to make good the loss to the insured, but the contract being void the same cannot be directed to be done by the insurance company.
9. There is no dispute that Kartar Singh died somewhere in 1975 and the accident occurred in 1981. The premium of insurance policy was being paid all along by the respondent Nos. 2 (a) to 2 (d), i.e., heirs of Kartar Singh. Respondent No. 4 was looking after and managing the affairs after the death of Kartar Singh. Insurance company accepted the premium all along and issued valid insurance policy for the year of accident.
10. So far as the fact of negligent driving is concerned, the same has not been seriously challenged as taking the vehicle through a culvert overflowing with the water itself shows that the driver took the risk with the expectation that nothing untoward shall happen and if in that situation the bus was swept away by strong current of water, the natural inference would be that driver acted rashly and drove the vehicle negligently without caring for the safety of passengers in the vehicle. In such a situation respondents cannot be allowed to say that it was a vis major. Thus, the finding about rash and negligent driving has rightly been arrived at. We also confirm the same.
11. Now, so far as the liability of the insurance company is concerned, Section 94 (new Section 146) of the Motor Vehicles Act, 1939, makes a provision of compulsory insurance for covering the third party risk, which reads as follows:
146. No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.
12. From the plain reading of the section it is apparent that third party insurance in all cases of use of vehicle is necessary. Admittedly Kartar Singh died somewhere in the year 1975. The insurance company had all along been accepting the premium for the insurance of motor bus and it had accepted the premium for the year of accident also. The accident occurred on 9.8.1981. The insurance company had collected premium for the period 11.6.1981 to 10.6.1982. The insurance company has got a number of officers and employees to check and verify the vehicle and the owner of the vehicle. Now having accepted the premium for the insurance of the vehicle the insurance company cannot be allowed to say that it is not liable to compensate the persons who have been injured or who died in the accident. The contention of the learned Counsel for the respondents who was supporting the finding of the Tribunal submitted that the vehicle was owned by Kartar Singh and since he had died there is end of liability of the insurer in respect of the motor bus.
13. We are not persuaded to uphold this argument though the Tribunal was. There is nothing in the policy issued in the name of Kartar Singh stating that it is purely personal to him. On the other hand, on plain reading of the condition of the policy it is clear that the coverage is that of the motor bus and not the insured. Section 94 of the Motor Vehicles Act insists for the compulsory insurance against the third party risk and prohibits user of vehicle in a public place unless there is a policy of insurance. The words "unless there is in force in relation to the use of the vehicle of that person.. .a policy of insurance" go to show that it is the vehicle that is required to be insured and not the person or the owner of the vehicle and in such a situation the insurance company cannot escape its liability. A similar argument was advanced before the High Court of Andhra Pradesh in a case reported in Haji Zakaria v. Naoshir Cama 1976 ACT 320 (AP), but the same was repelled and it was held that the insurance company is liable to compensate third party.
14. Vehicular accidents have increased and the question that arises is as to whether sufferers from vehicular accident are entitled under law to get something for their survival or should be left without redress. The following observations of Lord Denning, M.R., in the case on Launchbury v. Morgans (1971) 2 QB 245, are equally relevant for our case:
A motor vehicle is a powerful engine of death and destruction. It is capable of doing much damage to persons and to property unless it is driven with due care and attention. As the number of cars increases and as their speeds get faster, so the danger grows. More and more people are killed. More and more are injured. More and more property is damaged. The sufferers ought not to be left without redress. So Parliament and Judges have done their best to see that they are compensated for their loss.
(Emphasis added)
15. The benevolent object of the legislation has been considered by the Supreme Court in a number of cases. We would refer to the decision of the Supreme Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, AIR 1987 SC 1184 (H.N.): 1987 ACJ 411 (SC), which reads as follows:
In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Section 94 requiring the owner of the motor vehicle using it in a public place has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered from the person held liable who may not have the recources. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risks.
16. In our considered opinion, therefore, despite the fact that Kartar Singh was dead at the time of accident and the premium was paid by his legal heirs, the insurance company is liable to pay compensation to the heirs of the deceased and to the injured in the accident. If they are aggrieved by the concealment of fact or misrepresentation or fraud, if any, they can make a grievance before the appropriate forum separately, but they cannot escape their liability of payment of compensation by raising this bogey of agreement being void.
17. The next point that arises for determination in this case is that as to whether Mangi Lal died in the accident? Learned Tribunal, on the basis of evidence of Mangi Lal s/o Dharmya, AW 2, has held that deceased Mangi Lal was also travelling along with him in that bus which was swept away with the current of water. He has further stated that the body of Mangi Lal could not be found. There is nothing to disbelieve this witness. It has, therefore, rightly been held by the Tribunal that Mangi Lal died in the accident.
18. Now, the point that arises for determination in the case is that what would be the just compensation in the case and as to whether the amount deserves to be enhanced?
Normally for determining the compensation either the method of capitalisation of net income or choosing the multiplier appropriate to the age of the deceased will be the appropriate method. But, the method of aggregating the total expected income for the remainder of the life-expectancy with appropriate deductions towards uncertainties of life and for lump sum payments is now considered unscientific and is virtually obsolete and, therefore, taking the yearly income and the loss of the dependency of the claimants and its capitalisation by using a multiplier having regard to the age of the deceased will be the appropriate method for estimating the compensation. [National Insurance Co. Ltd. v. Swaranlata Das 1993 ACJ 748 (SC)].
19. Learned Tribunal has, on the basis of statement of Mangi Lal and the averments in the petition, held that Mangi Lal was earning Rs. 10/- per day. However, the dependency has been assessed to Rs. 5/- per day only on the ground that Nani Bai was also earning as a labourer. Looking to the number of the family members, specially as the claimant-appellant Nos. 3 to 8 are minors and Nos. 9 and 10 parents of deceased as also the father Onkar (claimant No. 9) is a person aged about 75 years, who may not be able to work, the dependency ought to have been assessed to Rs. 6/- per day (in the special facts and circumstances of this case). Thus, the dependency of the claimants would come to Rs. ISO/- per month and Rs. 2,160/- per year. The age of the deceased Mangi Lal has been accepted to be 45 years. The learned Tribunal has adopted multiplier of 10. Mangi Lal , being a labourer, would have worked upto the age of 60 years and in such a situation a multiplier of 13 ought to have been applied [Learned Tribunal itself had applied multiplier of 13 in other case, that is, in Claim Case No. 89 of 1981 (new No. 66 of 1986)]. Thus, the general damages payable to the claimant would come to Rs. 28,080/-, which may be rounded to Rs. 28,000/-. The learned Tribunal awarded Rs. 3,000/- for loss of consortium to Nani Bai, but nothing has been awarded for the loss of love and affection to other claimants, i.e., son, daughters and parents. A separate amount of Rs. 5,000/- deserves to be awarded on that count as well. Thus, the claimants would be entitled to a total compensation of Rs. 28,000/- + Rs. 3,000/-+ Rs. 5,000/- = Rs. 36,000/- in all, with interest at the rate of 12 per cent per annum from the date of application till realisation of the same, which shall be recovered from the respondents jointly and severally.
20. As to the mode of payment, we would like to observe that Section 168 of Motor Vehicles Act specifically empowers the Tribunal to award just compensation. 'Just compensation' would include payment of compensation by periodical instalments.
In fact all the insurance companies are paying compensations from the money collected from the public, i.e., policy holders. This is a public money owned by the society. Thus, it is the society who is giving protection to the injured persons and in such a situation while directing the mode of payment the Tribunals are required to see that the compensation, specially the compensation awarded in favour of the minors, are secured in such a way so that the minors may get payments periodically till they gain majority. Apart from the aforesaid aspects, it should be noted that because of the death of the bread-earner of the family the entire family suffers. The task of approaching the law courts by engaging lawyers for filing the application for compensation may also sometimes add to their miseries. The following observations of their Lordships of the Supreme Court in a case of Motor Owners' Insurance Co. Ltd. v. Jadavji Keshavji Modi 1981 ACJ 50/ (SC), gives a guideline in this respect, which reads as under:
We are, therefore, of the opinion that the ambiguity in the language used by the legislature in the opening part of Section 95 (2) and the doubt arising out of the correlation of that language with the words 'in all' which occur in Clause (a) must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chapter VIII of the Act which deals with third party risks. That is a sensitive process which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately not receding, that courts have to fill gaps, clear doubts and mitigate hardships.
21. In our opinion, therefore, instead of giving lump sum compensation it would be in the interest of victims and the society to evolve a formula or mode for paying compensation periodically. The following observation made in a decision in New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat), is quoted with approval:
(5) .. .This method may, to some extent, alleviate the serious prevailing drawbacks, because it is stated that before the compensation reaches the hands of the victims or their heirs, the lion's share of the compensation is pocketed by the middlemen or so-called power of attorney holders who trade in their miseries. It may also save to some extent the huge expenses including advocate's fees which are required for litigation before getting compensation and may ensure safe custody of compensation amount awarded to the victims which, ultimately, would be in the interest of the society.
22. In our opinion, therefore, the award of Rs. 36,000/- be paid in following manner: Rs. 20,000/- be kept in a fixed deposit in some nationalised bank with a condition that the interest accruing on the sum would be paid quarterly, i.e., at the expiry of three months to Nani Bai and other members of the family for the welfare of claimant Nos. 3 to 8. The deposit shall initially be made for three years and shall be renewable thereafter every three years and such a process shall continue for 15 years. Thereafter, claimant Nos. 3 to 8 may be allowed to withdraw the amount in toto. [Almost a similar direction was made by their Lordships of the Supreme Court in National Insurance Co. Ltd. v. Swaranlata Das 1993 ACJ 748 (SC)]. The rest 2/3rd of the amount including the interest accruing on the compensation amount be paid in cash to Nani Bai for herself and claimant No. 2 and the 1/3rd amount be paid to the parents of the deceased, i.e., claimant Nos. 9 and 10.
23. As a result, the appeal (M. A. No. 296 of 1986) is allowed with costs. The award granted by the Tribunal is modified as above and further subject to the mode of payment as above. The amount of compensation mentioned above shall carry interest at the rate of 12 per cent per annum from the date of claim petition till realisation.
24. M.A. No. 297 of 1986 arises out of Claim Petition No. 93 of 1981 which has been filed by the heirs of Nisar Ahmad who died in the accident referred above. Learned Tribunal has held in para 14 of its award that Nisar Ahmad died in the accident. This fact has been corroborated by Mangi Lal s/o Dharmya, AW 2, who has stated that many passengers were swept away with the current of the water including Nisar Ahmad whose dead body could not be found. Similar statement has been given by Saida Bano wd/o deceased and Mohammad Naimkhan, AW 4, brother-in-law of deceased Nisar Ahmad. Both of them have stated that after hearing about the accident they went to the spot, but the body of Nisar Ahmad could not be recovered. We find nothing to differ with the finding of Tribunal about the death of Nisar Ahmad in the accident and we also affirm the same.
25. As stated by AW 3 and AW 4, Nisar Ahmad was working as village postman and was getting Rs. 150/- p.m. and was looking after agriculture work also. The learned Tribunal has estimated age of Nisar Ahmad to be about 36 years and accepted the multiplier of 15. Saida Bano, AW 3, stated that they were earning nearly Rs. 8,000/- to Rs. 10,000/- per year from their agricultural land, but now after the death of Nisar Ahmad the land has been given on lease and they get nearly Rs. 4,000/- to Rs. 5,000/- per year. There is no effective cross-examination on this point. Even otherwise, the work of village postman is a part-time job and in order to maintain and run a large family like his, Nisar Ahmad must have been working in his field and must have been carrying on some other work also. In such a situation, we are inclined to accept his income to be at least Rs. 250/- per month, which comes to Rs. 3,000/- per year.
In our opinion, looking to the size of the family he must have been spending Rs. 150 per month on them. Thus, the dependency of family comes to Rs. 1,800/- per year. The learned Tribunal has applied a multiplier of 15 by accepting age to be 36 years. Nisar Ahmad could have worked up to the age of 60 and, therefore, in such a situation at least multiplier of 18 ought to have been applied. The claimants are, therefore, entitled for a compensation on the heading of general damages to the extent of Rs. 32,400/-, which may be rounded as Rs. 32,000/-. Learned Tribunal has awarded Rs. 3,000/- for loss of consortium to Saida Bano and nothing to the children and the mother for loss of love and affection. As such a separate amount of Rs. 4,000/- is awarded on that heading. Thus, the claimants in the case are entitled to a compensation of Rs. 32,000/- + Rs. 3,000/- + Rs. 4,000/- = Rs. 39,000/- in all with interest at the rate of 12 per cent per annum from the date of application till realisation of the same. Since claimant Nos. 2, 3 and 4 are minors and, therefore, an amount of Rs. 25,000/- be deposited in an interest paying annuity deposit in some nationalised bank. The interest thereon shall be paid to the claimant No. 1, Saida Bano, for the welfare of claimant Nos. 2 and 3 on a quarterly basis. Since claimant Nos. 2 and 3 are shown to be aged 5 years and 3 years the amount shall remain in fixed deposit for 15 years and thereafter whole amount can be withdrawn and paid to the minors. The rest of the amount including the interest accruing thereon shall be paid to claimant No. 1 and claimant No. 5 jointly. The compensation would be recoverable jointly and severally from all the respondents.
26. M.A. No. 298 of 1986 arises out of Claim Petition No. 89 of 1981, which has been filed by heirs of Sukya, who died in the accident referred above. Bali Bai wd/o deceased Sukya has stated that her husband Sukya was a passenger in the bus which was swept away by the strong current of water. Eyewitness Mangi Lal , who was a fortunate survivor, has also stated that Sukya was a passenger in the bus. It has, therefore, rightly been held that husband of Bali Bai died in the motor accident. Bali Bai has stated that her husband Sukya was earning nearly Rs. 7 to Rs. 8/- per day. She has further stated that Sukya was aged about 45 years. The learned Tribunal has rightly used the multiplier of 13 in the case, as is evident from para 16 of the judgment of the learned Tribunal. The loss of dependency has been accepted to be Rs. 100/- p.m., i.e., Rs. 1,200/- per year. The learned Tribunal has accepted that the deceased could spare Rs. 4/- per day for the claimants. In that position the dependency would come to Rs. 120/- per month, which will come to Rs. 1,440/- per year. As such a multiplier of 13 when applied the total loss of dependency would come to Rs. 18,720/- which may be rounded up to Rs. 19,000/-, that appears to be proper amount. Learned Tribunal has awarded Rs. 3,000/- for loss of consortium but nothing has been awarded for loss of love and affection to claimant No. 2. An amount of Rs. 3,000/- would be proper to award on that count. As such the total compensation would be Rs. 19,000/- + Rs: 3,000/- + Rs. 3,000/- = Rs. 25,000/- and after deducting ex gratia of Rs. 2,000/- the net compensation comes to Rs. 23,000/-. The interest of 12 per cent on this amount from the date of application till realisation has rightly been awarded. The same is affirmed. Out of the amount so awarded Rs. 12,000/- is be kept in interest paying fixed deposit in some nationalised bank, renewable after 3 years with a direction that the interest accruing on the same shall be paid after the expiry of 3rd month to the claimant Bali Bai for the welfare of claimant No. 2, who is a minor. This amount shall be kept in the bank for 15 years. Thereafter the claimant No. 2 would be entitled to withdraw it in full. The rest of the amount and the interest accruing thereon may be paid to claimant No. 1.
27. M.A. No. 325 of 1986 and M.A. No. 326 of 1986 arise out of Claim Petition Nos. 90 of 1981 and 95 of 1981 respectively. Both the claim petitions have been filed by the same claimants, i.e., Tulsi Ram and his wife Laxmi Bai. As per the assertions of the claimants, claimant No. 2, Laxmi Bai, was travelling in the fateful bus along with her two daughters, Sulochana aged 6 years and Mamta aged 4 years. Both of them were swept away by strong current of water and their bodies could not be found. Claimants prayed for a compensation of Rs. 15,000/- for the death of Sulochana vide Claim Case No. 90 of 1981 and prayed for a compensation of Rs. 15,000/- for the death of Mamta vide Claim Case No. 95 of 1981. The learned Tribunal has awarded a global compensation of Rs. 15,000/- in each case. From the evidence of Tulsi Ram it is proved that his two daughters were swept away in the strong current of water who were travelling with his wife Laxmi Bai. Laxmi Bai has not been examined in the case who had the firsthand knowledge of the accident, as after the accident she was mentally deranged. There is nothing to differ about that finding and the same is hereby affirmed. A global compensation awarded on death of each of the daughters of claimants, i.e., Sulochana and Mamta, by the Tribunal appears to be proper. We are not inclined to interfere in the award granted by the Tribunal in both the cases.
28. M.A. No. 330 of 1986 arises out of Claim Petition No. 1 of 1982, which has been filed by the heirs of deceased Karson alias Sarvan, who died in the accident referred above. Claimants Rusi Bai and Ram Kunwar are widows of Sarvan. Gulab Bai and Ghisi Bai are the daughters of the deceased Sarvan. It is alleged that Sarvan was also a passenger in the fateful bus and was swept away in the strong current of water. This fact has been stated by Mangi Lal . There is no challenge to that statement. As such it has rightly been accepted that Sarvan died in motor accident. Claimant Nos. 3 and 4 are married daughters and they were not dependent on Sarvan. As such claim on their behalf has rightly been disallowed by the Tribunal. Deceased Sarvan was aged about 60 years and the claimant Nos. 1 and 2 are aged about 50 years. Deceased Sarvan may have lived up to the age of 70 years, but without sufficient earning capacity. The Tribunal has assessed a global compensation of Rs. 15,000/-, but has deducted Rs. 4,000/- (ex gratia payment made by the Government).
In our opinion, in the facts and circumstances of the case at least Rs. 15,000/- ought to have been awarded to the claimants in the case as before the amendment in 1988 amount of Rs. 15,000/- was awardable on the basis of no fault liability. We, therefore, enhance this compensation to Rs. 15,000/-. The claimants shall further be entitled to interest at the rate of 12 per cent per annum from the date of application till realisation of the same. Out of the amount so awarded 50 per cent of the same including the interest accruing thereon shall be kept in the fixed deposit in some nationalised bank with a direction that the interest would be paid quarterly, i.e., on expiry of three months to both the widows, i.e., claimant Nos. 1 and 2. The same would be renewable every three years and may be withdrawn by the claimants or the surviving claimants after the expiry of ten years. The rest of the amount shall be paid to claimants in cash.
29. M.A. No. 331 of 1986 arises out of Claim Petition No. 97 of 1981. The claimant No. 1, Shanti Bai, is widow of deceased Mangi Lal . Claimant Nos. 2 and 3 are son and daughter of the deceased Mangi Lal . Claimant Nos. 4 and 5 are mother and father of deceased Mangi Lal . Claimant No. 5 died during the pendency of appeal, as such his name struck off from the array of claimants-appellants.
It is alleged that Mangi Lal was also a passenger in the fateful bus, who was also swept away in the strong current of water and his body was found later on in the down stream of river Malan near Dharampur. The death of Mangi Lal in the accident has been found proved by the Tribunal on the basis of the statement of Shanti Bai, wd/o Mangi Lal , AW 3 and Dhanna, AW 4. Mangi Lal s/o Dharmya, AW 2, has also stated about Mangi Lal being a passenger, but he has stated about one Mangi Lal only. The death of one Mangi Lal who was husband of Nani Bai (claimant in Claim Case No. 3 of 1982) has been accepted. However, the body of that Mangi Lal was not found and in this case the body was found in the down stream and, therefore, the death of Mangi Lal in the accident has rightly been found proved.
Now, so far as the assessment of compensation is concerned, the learned Tribunal has assessed the dependency at Rs. 100/-p.m. Shanti Bai, AW 3, stated that deceased Mangi Lal was getting Rs. 400/- per month while working in a cycle repairing shop. A similar statement has been given by Dhanna, but the owner of the cycle shop has not been examined and in view of the nature of job, uncertainty in employment and the fact of partial employment the dependency of Rs. 100/- p.m. has rightly been assessed. The learned Tribunal has applied a multiplier of 15. The deceased was aged about 25 years hence there was every chance of his working up to the age of 60 years and in that position the multiplier of 18 ought to have been applied. Thus, the loss comes to Rs. 1,200/-x 18 = Rs. 21,600/- which may be rounded as Rs. 22,000/-. The learned Tribunal has awarded Rs. 3,000/- for loss of consortium to the widow. That amount appears to be proper, but nothing has been awarded for the loss of love and affection to claimant Nos. 2 and 3 and to claimant No. 4 (mother). An amount of Rs. 3,000/- on that count would be proper to be paid. As such, the claimants are entitled to a compensation of Rs. 22,000 + Rs. 3,000/- + Rs. 3,000/- = Rs. 28,000/- in all with interest of 12 per cent per annum thereon from the date of application till realisation of the same. 50 per cent of the amount including the interest accruing thereon shall be kept in a fixed deposit in some nationalised bank accruing interest with a direction that the interest shall be paid for the welfare of claimant Nos. 2 and 3 every quarter. The amount would be deposited for 3 years at the first instance and shall be renewable every 3rd year for a period of 15 years. Thereafter, the claimant Nos. 2 and 3 would be entitled to withdraw it in lump sum. The amount shall be paid to Shanti Bai for the welfare of claimant Nos. 2 and 3 and to claimant Nos. 2 and 3 after they gain majority. In case of remarriage of Shanti Bai, they may be paid through Gopi Bai or any other guardian of claimant Nos. 2 and 3. The rest of the amount shall be paid to Shanti Bai and Gopi Bai. The 50 per cent of that amount shall also be kept in fixed deposit for three years renewable every 3rd year with a direction that the interest shall be paid, every quarter, jointly to Shanti Bai and Gopi Bai. The rest of the amount, i.e., 1/4th of the total award including interest shall be paid in cash to the surviving claimants, i.e., claimant Nos. 1,2, 3 and 4.
30. M.A. No. 332 of 1986 arises out of Claim Case No. 96 of 1981. The claimant Sakha Ram who died during pendency of claim was the father of Santosh who was a passenger in the fateful bus. His body was also swept away in the strong current of water and could not be found. Sakha Ram and Selu Bai (mother of Santosh) jointly filed the claim petition for a compensation of Rs. 25.000/-, but Sakha Ram died before statement could be recorded. Selu Bai, AW 2, has stated that Santosh was travelling along with her husband in the bus. The bus was swept away. Sakha Ram could swim, but Santosh could not be saved. Though learned Tribunal has referred to statement of Mangi Lal also, but Mangi Lal has nowhere disclosed the name of Santosh. However, the statement of Selu Bai and the statement made by Sakha Ram by way of petition that his son Santosh aged 9 years died in the accident goes to prove that Santosh died in the accident.
Learned Tribunal has awarded a global compensation of Rs. 15,000/- without making any deduction of Rs. 2,000/- ex gratia payment. That appears to be proper as that was the amount payable on the basis of no fault liability prior to the amendment in the Act in the year 1988. We also affirm the same. The claimants shall be entitled to interest at the rate of 12 per cent per annum: 50 per cent of the amount awarded including the interest shall be kept in a nationalised bank accruing quarterly interest, initially for three years and renewable every 3rd year for a period of 15 years. The quarterly interest shall be paid to Selu Bai for all this period. The rest of the amount shall be paid to Selu Bai in cash.
31. Before parting with these cases we may like to observe that with the progress of the civilization the speed has increased. All those persons who want to avail the facility of increase in speed by using motor vehicle or such other means of transport and communication voluntarily take the risk as passengers or travellers in such high speed vehicles. This may not be true for pedestrians who walk on the road and meet with the accident, but that definitely applies to persons who take advantage of the high speed vehicles. By introducing a scheme of payment of compensation by the owner and driver of the vehicle whose rash and negligent act has resulted in the accident and further through scheme of insurance, society has safeguarded the interest of citizens including pedestrians. Society, in fact, gives a guarantee against such risk and insurance companies who are trustees of public money collected from the various owners of the motor vehicles by way of premium which ultimately passes on to public, discharge their tortious liability by making such payments and, therefore, while assessing the compensation it should always be taken into consideration that it is the public money that is being paid. The death of kith and kin of claimants be not allowed to be a boon in disguise. It is desirable that the payment of compensation should be reasonable which may be sufficient looking to the dependency in the facts and circumstances of the case, but at the same time it should not be lavishly granted as the same causes burden on the society indirectly. Though it is also true that the claimants are not being paid compensation by way of alms or out of respite, but the same is paid to them while discharging the tortious liability.
32. As a result, M.A. Nos. 296 of 1986, 297 of 1986,298 of 1986,330 of 1986,331 of 1986 and 332 of 1986 are allowed with costs. The complainants-respondents shall be entitled to get compensation (the amount of compensation and the mode of payment shall be as mentioned in para Nos. 22, 25, 26,28,29 and 30 above) along with interest at the rate of 12 per cent per annum from the date of application till realisation, from the respondents including the insurance company, jointly and severally. M.A. Nos. 325 and 326 of 1986 are partly allowed subject to modification that the amount of compensation awarded shall be recoverable from all the respondents. Counsel's fee Rs. 500/- in this case.