Punjab-Haryana High Court
Rekhs Sharma And Others vs Sukhdev Raj And Others on 21 August, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.4439 of 2010 (O&M)
Date of Decision : 21.8.2013
Rekhs Sharma and others .....Appellants
Versus
Sukhdev Raj and others ......Respondents
CORAM : HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr.Sham Lal Bhalla and Santosh Sharma, Advocates
for the appellants.
Mr.APS Sidhu, Advocate for respondents No.1 and 2.
Mr.Harsh Aggarwal, Advocate for
the respondent - Insurance Company.
NAWAB SINGH J.(ORAL)
This claimants' appeal is directed against the Award dated March 24, 2009 passed by Motor Accident Claims Tribunal, Fatehgarh Sahib (for short `the Tribunal').
2. The factual matrix of the case is that on January 07, 2006, at about 11.35 pm, Anil Sharma (deceased) was going on his motorcycle bearing No.PB-23T-0879, followed by his brother-in-law Krishan Lal (wife's brother) on his scooter, in the area of Mandi Gobindgarh. When they reached in front of Gianian Da Dabha, Sukhdev Raj, driving Mohindra Scorpio bearing No.PB-02V-0001 (for short `the Scorpio') at a fast speed came from behind in a rash and negligent manner and hit the motorcycle. Anil Sharma along with the motorcycle came under the Scorpio and was dragged by the Scorpio for quite a sufficient distance. The licence plate (commonly known as number plate) of the Scorpio entangled with the motorcycle and the driver of the Scorpio after dragging the motorcycle, managed his escape. Anil Sharma suffered multiple injuries and died on the spot.
3. FIR No.3 dated January 08, 2006 (Exhibit P-2) was registered under Sections 304-A, etc. IPC in Police Station Mandi FAO No.4439 of 2010 (O&M) [2] Gobindgarh against the driver of the Scorpio. Post mortem examination (Exhibit P-1) was conducted on the dead body of Anil Sharma.
4. Rekha Sharma - appellant No.1, wife of the deceased and Mohit Sharma and Dinesh Sharma, sons aged about 16 years and 13 1/2 years, respectively, filed claim application under Section 166 of the Motor Vehicles Act, 1988 (for short `the Act') before the Tribunal, alleging that the accident was caused on account of rash and negligent driving of the Scorpio. They claimed compensation of Rs.40 lacs. It was pleaded that Anil Sharma was a Commission Agent and was having a firm in the name and style 'M/s Anjali Steel Industries', Mandi Gobindgarh and was earning Rs.25,000/- per month. He was about 40 years old at the time of his death.
5. Sukhdev Raj, driver and Manjinder Singh, owner of the Scorpio filed joint written statement averring that the accident did not occur with the Scorpio, so, they were not liable to indemnify the loss caused by the alleged accident.
6. The Insurance Company - respondent No.3 filed written statement pleading that owner of the vehicle had violated the terms and conditions of the insurance policy. It was also alleged that at the time of the accident, the driver of the Scorpio was not holding a valid driving licence.
7. On contest, the following issues were framed:-
"1. Whether Anil Sharma died on account of motor vehicle accident which took place by rash and negligent driving by Sukhdev Raj of vehicle No.PB-02V-0001 at about 11.35 PM in the area of Mandi Gobindgarh? OPP
2. Whether claimants are entitled to compensation being legal representatives of Anil Sharma? OPP
3. Whether respondent No.1 was not holding a valid driving licence at the time of accident? OPR
4. Relief."FAO No.4439 of 2010 (O&M) [3]
8. The first issue was answered by the Tribunal in affirmative. It was held that the accident occurred due to rash and negligent driving of the Scorpio. The Tribunal described the evidence comprising of Mohinder Pal Jain (PW3) and the audit report (Mark-A) (Form No.3CB filed under Section 44-AB of the Income-Tax Act, 1961) (for short `the audit report') and held the income of the deceased at Rs.4500/- per rd month. 1/3 was deducted for his personal and living expenses and loss of dependency was assessed at Rs.3000/- per month, that is, Rs.36,000/- per annum. Considering the age of the deceased (40 years), the Tribunal applied multiplier of 12 and total loss of dependency was determined as Rs.4,32,000 (36000x12). That apart, a sum of Rs.30,000/- was awarded towards the expenses of last rites of Anil Sharma. In all, compensation of Rs.4,62,000/- was awarded to the claimants.
9. While answering issue No.3, the Tribunal held that Sukhdev Raj was not holding a valid driving licence to drive the Scorpio. The Insurance Company was directed to pay the amount of compensation, but it was given right to recover the same from the owner and driver of the Scorpio.
10. Feeling dissatisfied with the quantum of compensation, the claimants are in appeal before this Court.
11. To determine the occupation and the income of the deceased, the evidence relied upon by the claimants is the statement of Mohinder Pal Jain (PW3) and the audit report dated August 12, 2005 (Mark-A). Mohinder Pal Jain deposed that Anil Sharma was dealing as a Commission Agent in the Open Market (Mandi) at Gobindgarh and was having a firm in the name and style `M/s Anjali Steel Industries". The Tribunal held that deceased was earning Rs.4500/- per month, but that was not based on any document, particularly, when the claimants relied upon audit report (Mark-A). A perusal of Mark-A shows that net income of the deceased was Rs.85422/- per annum, that is, Rs.7118.50 paise per month. This audit report cannot be said to be a fabricated document. It was submitted before the Income Tax Authorities prior to the death of FAO No.4439 of 2010 (O&M) [4] Anil Sharma. It was also proved that Anil Sharma was having a firm, so, this Court assesses the income of the deceased at Rs.85422/- per annum. 1/3rd of it is to be deducted towards personal and living expenses of the deceased and, the annual loss of dependency comes to Rs.56948 [85422-(85422x1/3)].
12. As per Smt.Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(6) SCC 121, since the deceased was 40 years old, as mentioned in the report of post mortem examination (Exhibit P-1), multiplier of 15 is applicable for calculating the total loss of dependency, whereby, the Tribunal applied the multiplier of 12.
13. Apart from that, considering the age of the deceased (40 years) and the widow (32 years), claimant - widow is also entitled to Rs.1,00,000/- under the head of `loss of consortium'. This amount is awarded in view of the latest judgment of the Hon'ble Supreme Court in Rajesh and others vs. Rajbir Singh and others 2013 ACJ 1403, wherein, a full Bench of the Supreme Court commented upon the meaning of consortium and awarded Rs.1 lac to the wife on account of death of her husband who was 33 years of age.
14. The vehicle, which caused the accident was Mohindra Scorpio, which is a Jeep. Sukhdev Raj has proved by placing on record verification report of the licence (Exhibit R-2) issued by Licensing Authority, Motor Vehicle, Ludhiana that he was authorised to drive motorcycle and car. The Tribunal held that the accident was caused by Mohindra Scorpio, so, its driver Sukhdev Raj was not holding a valid driving licence in view of Section 2(21) of the Act. So, the Insurance Company was directed to pay the amount of compensation, but also given right to recover the same from the driver and owner of the Scorpio. This finding has been supported by Mr.Harsh Aggarwal, learned counsel for the Insurance Company.
15. A perusal of the certificate of registration, a copy of which has been placed on record during the hearing of the arguments and taken on record as Annexure P-1, shows that unladen weight of the Scorpio was 880 kilograms. The body of Scorpio was saloon and its Horse Power FAO No.4439 of 2010 (O&M) [5] (B.H.P.) was 2609 CC. The Tribunal fell in error in holding that Sukhdev Raj was not holding a valid driving licence in view of the definition of Section 2(21) of the Act. For facilitation, Section 2(21) of the Act is reproduced as under:-
"2(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms."
16. A plain reading of the definition, quoted above, shows that Light Motor Vehicles means a transport vehicle or omnibus or a motor car or tractor or road-roller, the unladen weight of which, does not exceed 7500 kilograms. A reference can also be made to Section 2(25) of the Act, which reads as under:-
"(25) "motor car" means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage"
17. A cumulative reading of the aforesaid Sections clearly makes out that motor car means any motor vehicle other than a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage. It is not the case of either party that the Scorpio, the details of which have been given hereinbefore, was a transport vehicle, omnibus, road-roller, tractor, motor cycle or invalid carriage. The unladen weight of Scorpio was 880 kilograms. It was a light motor vehicle. So, it is held that Sukhdev Raj was holding a valid driving licence to drive the same.
18. Learned counsel for respondent - Insurance Company has also urged that since the driver and the owner are not in appeal before this Court challenging the Award, so a finding recorded against them, cannot be set aside. Truly, the driver and the owner are not in appeal before this court, but they are duly represented by Mr.ABS Sidhu, advocate, who during the hearing has brought all the facts to the notice of this Court that Sukhdev Raj was holding a valid driving license to drive the Scorpio. In view of that, this Court is to rectify the apparent mistake committed by the Tribunal.
FAO No.4439 of 2010 (O&M) [6]19. The Tribunal granted interest at the rate of 6% per annum on the amount of compensation to the claimants, but with a rider that if the amount of compensation is not deposited by the insurer within two months from the passing of the Award. Learned counsel for the Insurance Company has informed this Court that the amount could not be deposited within two months of the Award and, that is why, it was deposited later on along with interest at the rate of 6% per annum, as directed by the Tribunal.
20. In view of above, the claimants are held entitled to compensation as under:-
Sr.No. Heads Calculation (In Rs.)
(i) Income 85422/- per annum
(7118.50 p.m.)
(ii) 1/4th of (i) deducted as personal and living 85422-28474= 56948/-
expenses of deceased
(iii) Compensation after multiplier of 15 56948x15= 854220/-
(iv) Loss of consortium 1,00,000/-
(v) Funeral & Transportation Expenses 30,000/-
Total Compensation awarded 9,84,220/-
21. Hence, the appeal is allowed and the Award of the Tribunal is modified to the extent that the appellants are held entitled to total compensation of Rs.9,84,220/-, that is, Rs.5,55,220/- (984220-462000) over and above the amount awarded by the Tribunal. The amount of consortium (Rs.1,00,000/-) along with interest shall be paid to the widow of the deceased. The interest on the enhanced amount of Rs.5,55,220/- shall be paid from the date of filing claim application till the amount was deposited by the insurance company under the impugned Award at the same rate of interest as was awarded by the Tribunal.
August 21, 2013 ( NAWAB SINGH ) `gian' JUDGE Refer to Reporter : yes