Delhi District Court
Smt. Archana Gupta vs M/S. Cholamandalam on 7 January, 2021
IN THE COURT OF MS. SHUCHI LALER, PRESIDING
OFFICER-MOTOR ACCIDENT CLAIMS TRIBUNAL,
SHAHDARA DISTRICT, KKD, DELHI
MACT No. 1371/16
In the matters of :
1. Smt. Archana Gupta
W/o Late Sh. Vivek Mehrish,
Aged about 55 years,
R/o B-503, Maurya Apartment,
95, I.P. Extension, Delhi - 110092
2. Ms. Shubhangi Mehrish
D/o Late Sh. Vivek Mehrish,
Aged about 20 years,
R/o B-503, Maurya Apartment,
95, I.P. Extension, Delhi - 110092 ........ Petitioners
Versus
1. M/s. Cholamandalam
MS General Insurance Co. Ltd.
Having its Office at:
Plot No. 6, Pusa Road,
Near Metro Pillar No. 81,
New Delhi - 110005.
(Insurer of the vehicle - Cover Note
No. 9553947 validity from 28.09.2014
to 27.09.2015)
2. Sh. Shiv Kumar,
S/o Sh. Nek Ram,
R/o H.No. 137, Gali No. 4,
Bank Colony, Mandholi Extension,
Delhi.
(Owner of the offending vehicle)
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 1 of 39
3. Sh. Monu Kumar (Deceased Driver)
Since deceased, through LRs
R/o 84, Garhi, Pilkhuwa, Ghaziabad,
Uttar Pradesh ........ Respondents
Date of Institution : 21.11.2014
Arguments heard on : 10.11.2020
Date of Judgment : 07.01.2021
AND
MACT No.1145/16
1. Sh. Ajay Kumar Mathur,
S/o Late Sh. M.C. Mathur,
Aged about 56 years,
R/o B-603, Maurya Apartment,
95, I.P. Extension, Delhi - 110092
2. Ms. Poonam Mathur,
W/o Sh. Ajay Kumar Mathur,
Aged about 56 years,
R/o B-603, Maurya Apartment,
95, I.P. Extension, Delhi - 110092 .......... Petitioners
Versus
1. Shiv Kumar
S/o Shri Nek Ram,
R/o H.No. 137, Gali No. 4,
Bank Colony, Mandholi Extension,
Delhi.
(Owner of the offending vehicle)
2. M/s. Cholamandalam
MS General Insurance Co. Ltd.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 2 of 39
Having its Office at:
Plot No. 6, Pusa Road,
Near Metro Pillar No. 81,
New Delhi - 110005.
(Insurer of the vehicle - Cover Note No. 9553947 Validity from 28.09.2014 to 27.09.2015) ........ Respondents Date of Institution : 14.11.2014 Arguments heard on : 10.11.2020 Date of Judgment : 07.01.2021 AWARD
1. Vide this common award, both claim petitions, arising out of the same accident, would be decided. These claim petitions arise out of an accident which took place on 06.10.2014 at about 5.30 pm, near Village Ghat Garh Kaladhungi, Nanital Road, resulting into death of Ms. Pooja Mehrish and Ms. Saloni Mathur.
2. The case of petitioners, in brief, is that on 05.10.2014, a Residential Society Group comprising of 60 people went for a holiday from Delhi to Jim Corbett National Park and on 06.10.2014, when the deceased along with 15 others was returning from Jim Corbett National Park in Tempo Traveler bearing registration no. DL 1VC 0310, Sh. Monu Kumar was driving the offending vehicle i.e. Tempo Traveler in a rash and negligent manner and lost control over the vehicle MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 3 of 39 at Nanital Kaladhungi Highway. The offending vehicle turned turtle and fell into a 350 meters deep cliff. Ms. Pooja Mehrish and Ms. Saloni Mathur were shifted to Government Hospital, Kaladhungi where from they were referred to Sushila Tiwari Government Hospital, however, they were declared brought dead at Sushila Tiwari Government Hospital, Haldwani. It has been alleged that the accident took place due to rash and negligent act and driving of offending vehicle by respondent no. 3 / Sh. Monu Kumar. FIR No. 63/14, dated 07.10.2014, U/s 279/304A/337/338 IPC was registered at PS Kaladhungi, Nanital.
3. Respondent No. 1 / Sh. Shiv Kumar, in his reply, has denied that the accident took place due to negligence of driver. He stated that the driver was holding valid license and the vehicle was duly insured with Cholamandalam Insurance Company. The respondent no.2 has averred that the vehicle was booked through Vinay Tours and Travels and a passenger list was prepared by the said Tour and Travel Agency wherein it was mentioned that 12 passengers would be traveling as per the seating capacity of the vehicle. Respondent no. 1 has denied that there were 16 passengers in the vehicle at the time of accident. Dismissal of the petition with cost has been prayed for.
4. Respondent no. 2 / Cholamandalam General Insurance Company, in its reply, stated that the offending MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 4 of 39 vehicle had a sitting capacity of 13 passengers while at the time of accident 16 people were travelling in the vehicle, which amounts to violation of terms and conditions of the Insurance Policy, hence, the Insurance Company is not liable to pay any compensation. The owner was not holding a valid and effective fitness certificate, route permit authorization so the owner is liable to pay compensation, if any.
5. On the basis of pleadings of the parties, following issues were framed on 07.12.2015:
In MACT No. 1371/16(i). Whether respondent no. 1 was driving vehicle bearing no. DL-1VC-0310 on 06.10.2014 at 5.30 pm near Village Ghat Garh, Kaladhungi, Nanital Road in a high speed and in a rash and negligent manner as a result deceased driver lost control of the vehicle which turned turtle and fell into to cliff/ gorge as a result Ms. Pooja Mehrish, occupant of the vehicle sustained fatal injuries? OPP
(ii). Whether the petitioners are entitled for any compensation, if so, and for what amount? OPP
(iii). Relief.In MACT No.1145/16
(i). Whether respondent no. 1 was driving vehicle bearing no. DL-1VC-0310 on 06.10.2014 at 5.30 pm near Village Ghat Garh, Kaladhungi, Nanital Road in a high speed and in a rash MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 5 of 39 and negligent manner as a result deceased driver lost control of the vehicle which turned turtle and fell into to cliff/ gorge as a result Ms. Saloni Mathur, occupant of the vehicle sustained fatal injuries? OPP
(ii). Whether the petitioners are entitled for any compensation, if so, and for what amount? OPP
(iii). Relief.
6. To prove their case, the petitioners have examined following witnesses in MACT No. 1371/16:-
(A) Smt. Archana Gupta as PW-1 who tendered her evidence by way of affidavit which is Ex.PW1/A. She has relied upon the following documents:-
(i) Certified Copies of Criminal Case Record as Ex.PW1/1 (colly);
(ii) Copy of Aadhar Card of petitioners as Ex.PW1/2 (colly);
(iii) Testimonials and Service Record of deceased as Mark A (colly) (B) Ms. Shubhangi Mehrish appeared as PW-2 who tendered her evidence by way of affidavit which is Ex.PW2/A. She has also relied upon the documents already exhibited as Ex.PW1/1 to Ex.PW1/6.
(C) Summoned witness Sh. Piara Singh Gambhir deposed as PW-3 and proved the confirmation letter Ex.PW3/A, Salary Slip of July, 2013 Ex.PW3/B and Latest Salary Slip Ex.PW3/C MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 6 of 39 of deceased.
(D) Sh. Prem Prakash, Manager, Syndicate Bank was summoned and examined as PW-4 and he proved the statement of account of deceased Ex.PW4/A.
7. The petitioners, in MACT No. 1145/16, examined the following witnesses:-
(A) Sh. Ajay Kumar Mathur as PW-1 who tendered his evidence by way of affidavit which is Ex.PW1/ A. He relied upon the copy of RC, Fitness, Permit, Insurance etc. of offending vehicle as Ex.PW1/1 (colly);
(B) Smt. Poonam Mathur testified as PW-2 and tendered her evidence by way of affidavit which is Ex.PW2/A. She relied upon documents such as certified copies of Criminal Case Record as Ex.PW2/1 (colly), Copy of Passport of deceased, petitioners, testimonials and Service Record of deceased as Mark A (colly).
(C) Summoned witness Sh. Ashwani Mohan, Assistant Professor, Amity Institute of Psychology and Allied Sciences, Amity University, U.P. deposed as PW-3 regarding the future prospects of the deceased after completion of M.A. Clinical Psychology. Further, he placed on record copy of Offer Letters received by other students of M.A. Clinical Psychology as Ex.PW3/1 and Ex.PW3/2.
All the aforesaid witnesses were duly cross examined on behalf of respondents.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 7 of 39
8. In both claim petitions, in rebuttal, respondent no. 1 stepped into the witness box as R1W1 and tendered his evidence by way of affidavit which is Ex.R1W1/A. Respondent No. 2 / Insurance Company also examined its Assistant Manager, Sh. Abhishek Nigam as R2W1 who tendered his evidence by way of affidavit which is Ex.R2W1/A. He relied upon the documents i.e. Permit and Authorized Route Permission already Ex.PW1/1, Insurance Policy as Ex.R2W1/1 and DL as Mark 'A'.
Both these witnesses were duly cross examined by ld. counsel for petitioner as well as ld. counsel for respondent.
9. Final arguments heard and record perused. Written submissions filed and same have also been perused.
10. Issue wise findings are as under:-
11. ISSUE NO. 1 - In an action founded on the principle of fault liability, the proof of rash and negligent driving of the offending vehicle is sine qua non. However, the standard of proof is not as strict as applied in criminal cases and evidence is to be tested on the touchstone of preponderance of probabilities. Holistic view is to be taken while dealing with the Claim Petition based upon negligence. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. Reference may be made to the judgments titled as New India Assurance Co. Ltd. Vs. Sakshi Bhutani & Ors., MAC APP. No. 550/2011 decided on 02.07.2012, Bimla Devi MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 8 of 39 & Ors. Vs. Himachal Road Transport Corporation & Ors. (2009) 13 SC 530, Parmeshwari Vs. Amirchand & Ors. 2011 (1) SCR 1096 & Mangla Ram Vs. Oriental Insurance Company Ltd. & Ors. 2018, Law Suit (SC) 303.
12. Petitioner / Ms. Archana Gupta (mother of deceased), in her affidavit Ex.PW1/A, testified regarding the manner in which the accident took place, in para no. (iii), however, her testimony regarding the accident is hearsay as she categorically admitted, in her cross examination, that she had not witnessed the accident. The relevant portion of her cross examination is as under:-
".....It is correct that I am not witness of the accident....
.....It is correct that I did not warn the driver of the offending vehicle as I was not travelling in the offending vehicle....."
13. The eye witness of the accident is PW-2, namely, Ms. Shubangi Mehrish, who testified regarding the manner in which the accident took place in para no. (iii) and the relevant portion is reproduced as under:-
"(iii) I say that on 6th morning the group went to Nanital for a day trip. After sightseeing, at about 4.30 pm, the group was returning to Jim Corbett National Park. The deceased along with 15 others left for Jim Corbett National Park in the Tempo Traveler (hereinafter referred as the "said offending vehicle ") bearing registration no. DL 1VC 0310.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 9 of 39 Copy of documents vehicle no. DL 1VC 0310 is exhibited as Ex.PW1/1. The deceased Driver, late Sh. Monu Kumar was driving the said vehicle at a very high speed in a rash and negligent manner. The children travelling in the said offending vehicle repeatedly shouted and requested the deceased driver to drive slowly and carefully. The deceased driver for sometime drove the vehicle slowly but to the utter shock of the passengers, the deceased driver resumed driving speedly and in rash and negligent manner. The children including the deponent, once again requested the deceased driver to slow down and drive carefully as there were lot of hair pin bends and the children were not feeling safe. However, the deceased driver did not pay any heed to the request made by the children and as a result of rash and negligent driving, the deceased driver, lost total control over the said offending vehicle at Nanital - Kaladhungi Highway, near Priya band, while negotiating a sharp turn. The said offending vehicle turned turtle and fell into a 350 meters deep cliff / gorge. The deceased driver and most of the children and deponent were thrown out of the said vehicle during its fall, while some of the children were trapped inside or in pockets around the said vehicle when it came to halt. The deceased was found near the vehicle with multiple injuries. The mother and other elders (of the children travelling in the Tempo Traveller), who were travelling in another bus were unaware of the mishap. However, their bus, stopped at a place where a group of people had assembled and upon enquiry, the parents came to know that a Tempo Traveller had fell in gorge. In the meantime, one of the parents called their son on his mobile phone and only thereafter, the parents came to know about the mishap. The parents and other elders immediately rushed to the place of accident and MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 10 of 39 were able to hear the hue and cries of the injured children from the gorge asking for help. However, as it was getting dark, due to densely wooded slope, it become difficult to rescue the survivors who had received serious and fatal injuries. The local villagers reached the place of accident and made efforts to rescue the injured, with the help of the parents and the local police. Copy of the news downloaded from the internet exhibited as Ex.PW1/2. The injured including the deponent and the deceased alongwith other were rushed to the government hospital, Kaladhungi for treatment, the buses, private vehicles that were plying on the highway and ambulances that arrived at the spot. However, due to seriousness of the injuries received, the doctors of the government hospital at Kaladhungi referred the deceased to Sushila Tiwari Government Hospital at Haldwani. However, the deceased was declared brought dead at Sushila Tiwari Government Hospital, Haldwani. The MLC report, post mortem report and the death certificate of the deceased are exhibited as Ex.PW1/3 (colly)"
14. PW-2 was cross examined at length by ld. counsel for Insurance Company as well as by ld. counsel for the owner. PW-2 reiterated, in her cross examination, that there were 17 passengers including the driver, the accident took place due to the rash and negligent driving of the offending vehicle by the driver. She further stated that there was a sharp curve at the point where the accident took place and as the driver of the vehicle was driving the same in a rash and negligent manner at high speed, hence, he lost balance of the vehicle while taking the said sharp curve and the offending vehicle toppled on the MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 11 of 39 right side of the road and fell into the gorge. She further clarified that nobody was sitting over the Tempo Traveller and categorically denied the suggestion that the offending vehicle was not being driven at excessive speed and that the accident did not take place due to rash and negligent driving of the offending vehicle by the driver. PWs Ajay Kumar Mathur and Poonam Mathur who testified as PW-1 and PW-2 respectively in MACT No. 1145/16, also deposed regarding the manner in which the accident took place in para no. (iii) of their affidavits, however, both the said witnesses admitted in their cross examination that they have not seen the accident as they were sitting in another bus and not in the offending vehicle.
15. It may be noted that the owner of the vehicle i.e. respondent no. 2 / Sh. Shiv Kumar has not, denied in his written statement, that the accident took place on 06.10.2014, rather he has categorically stated that "on 06.10.2014 at about 17.30 pm, when the said vehicle was returning from Nanital to Ram Nagar, the said vehicle on the road of Nanital, Kala Dungi, Near Priya band, fell down in a bay of about 250 feet and in the said accident one driver and two passengers died".
It is not the case of the respondents that the accident took place due to the negligence of any other vehicle. Therefore, in the opinion of the Tribunal in the facts of the present case, the principle of res ipsa loquitur is applicable as the offending vehicle fell into a gorge while taking a turn on the hilly road MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 12 of 39 which shows that the vehicle at that time was not being driven cautiously by the driver and that it is because of his rash and negligent driving that the accident took place. The said fact is further proved in the testimony of PW-2 Ms. Shubangi Mehrish who categorically deposed, not only in her examination in chief but also in her cross examination, that the vehicle was being driven by the deceased driver at a high speed on hilly road and that too in a rash and negligent manner because of which he lost control over the said vehicle and the vehicle turned turtle and fell into a gorge. Nothing could be extracted, in the cross examination of PW-2 Ms. Shubangi Mehrish, to show that the offending vehicle was being driven with due caution.
16. Accordingly, in light of the aforesaid discussion, the Tribunal is of the opinion that for the disposal of the present petition, it stands proved that accident occurred due to rash and negligent driving of the offending vehicle by the deceased driver which resulted into death of Ms. Pooja Mehrish and Ms. Saloni Mathur. It also stands proved that the offending vehicle was owned by respondent no. 2 Sh. Shiv Kumar and was insured with respondent no. 1 M/s. Cholamandalam MS General Insurance Co. Ltd. Issue no. 1 is answered in favour of petitioners.
17. ISSUE NO. 2: - In view of finding on aforesaid issue, the petitioners are entitled to compensation, however, MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 13 of 39 the quantum of compensation and the liability to pay the same etc. still needs to be adjudicated. Section 168 of the Act enjoins the claim tribunal to hold an inquiry into the claim to make an award determining the amount of compensation which appears to just and reasonable. It has to be borne in mind that the compensation is not expected to be wind fall or a bonanza nor it should be pittance.
(MACT No. 1371/16: In Re - Smt. Archana Gupta)
18. In the instant claim petition, Ms. Pooja Mehrish expired in the road vehicular accident. To determine the compensation in a fatal case, three facts need to be established by the claimants: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents.
(i) Age of deceased: The age of deceased is necessary to apply the multiplier. As per the Secondary School Examination Certificate and other certificates collectively Mark A, the date of birth of the deceased was 04.02.1992. The accident took place on 06.10.2014, accordingly, the age of deceased at the time of accident was 22 years.
(ii) Determination of Income of deceased : After deciding the age of deceased, her income needs to be determined. The mother of deceased examined as PW1 deposed that the deceased was working with M/s. Golden Phoenix, MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 14 of 39 Shahanpurjat, Delhi as Social Media Executive and was drawing salary of Rs. 25,500/- per month. She was also doing part time work in company, namely, Vintage Desi, Mumbai and drawing monthly amount of Rs.7,000/-.
In order to prove the said income, the petitioners' examined Sh. Piara Singh Gambhir, Proprietor of M/s. Golden Phoenix as PW-3. PW-3 testified that deceased Ms. Pooja Mehrish was employed by him in July, 2013 at a starting salary of Rs.22,000/- per month and that the last salary drawn by the deceased was Rs.25,500/-. The witness exhibited and proved the confirmation letter as Ex.PW3/A, Salary Slip of July, 2013 as Ex.PW3/B and the letter showing the last salary as Ex.PW3/C. The witness was cross examined at length by ld. counsels for both the respondents and in his cross examination, he stated that he used to pay the salary to the deceased through cheque.
The deposition of PW-3 was corroborated with the statement of account of deceased Ex.PW4/A which was proved by Senior Branch Manager of Syndicate Bank, namely, Sh. Prem Prakash Verma while testifying as PW-4. In the statement of account Ex.PW4/A, it can be seen that the last salary drawn by the petitioner was Rs.25,500/- which was credited in her account on 15.09.2014. The testimony of mother of deceased that the deceased was also receiving Rs.7,000/- remuneration for her part time job with Vintage Desi, MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 15 of 39 Mumbai is also proved by the statement of account Ex.PW4/A which shows monthly credits of Rs.7,000/- per month in the account of the deceased. Accordingly, in view of the testimony of PW-1, PW-3 and PW-4 as well as documents Ex.PW3/A to Ex.PW3/C and Ex.PW4/A, it can be concluded that the deceased at the time of accident was earning Rs.32,500/- per month. Therefore, the annual income of the deceased at the time of her death is assessed at Rs.3,90,000/- (Rs.32,500/- X12).
(iii) Number of dependents : In the instant petition, legal heirs of deceased Ms. Pooja Mehrish are mentioned to be her mother Ms. Archana Gupta (petitioner no.1) and her sister Ms. Shubangi Mehrish (petitioner no.2). As far as the mother of deceased is concerned, she being the legal heir of the deceased is entitled to compensation. However, the sister of the deceased, namely, Ms. Shubangi Mehrish is not legal heir of deceased and though in her affidavit she stated that she is financial dependant on the deceased, however, in her cross examination she admitted that she is an advocate and for that reason it cannot be said that she was financially dependant upon the deceased. Therefore, the only legal representative of the deceased entitled to compensation is her mother, namely, Smt. Archana Gupta (petitioner no. 1).
(iv) Multiplier applicable in this case - As the age of the deceased has been ascertained, an appropriate multiplier has MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 16 of 39 to be determined. The judgment titled as Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider the multiplier. Para 21 of the judgment has laid down the multiplier as per age as under:
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to
25 years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between 61 to 65 years
M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 18 has to be applied against 22 years of age of the deceased to determine the compensation.
(v) Necessary deductions out of earnings of the MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 17 of 39 deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards her personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
Number of Deductions out of earning of the deceased. dependents Half / ½ Where dependent is 1 1/3rd Where the number of dependent family members is 2 to 3 1/4th Where the number of dependent family members is 4 to 6, 1/5th Where the number of dependent family members exceeds 6 (six).
The deceased left behind one dependant. Accordingly, ½ (half) earnings of the deceased has to be considered towards deductions out of her yearly earnings. As such, 1/2 (half) amount out of her annual income of Rs.3,90,000/- i.e. Rs1,95,000/- p.a. has to be reduced towards personal expenses. Thus, the deceased was earning Rs.1,95,000/- after 1/2 deduction towards personal expenses.
(vi) Future prospects : Besides it, future income of the deceased is also to be considered in view of judgment of MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 18 of 39 Hon'ble Apex Court titled as National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed as under:-
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) 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 aforesaid amounts should be enhanced at the rate of 10% in every three years.
In view of the above said judgment, 50% amount is to be considered towards future income of the deceased who was aged around 22 years having permanent employment.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 19 of 39
(vii) Loss of Dependency : It has already been observed that the deceased was earning Rs.1,95,000/- p.a. after 1/2 deduction. This annual income has to be multiplied by a multiplier of 18 as per Sarla Verma v. DTC (supra). Rs.1,95,000/- x 18 = Rs.35,10,000/-. Thereafter, 50% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Shetty (Supra) i.e. Rs.17,55,000/- has to be added to above said amount i.e. Rs. 35,10,000/- + 17,55,000/- = Rs.52,65,000/-.
(viii) COMPENSATION UNDER NON PECUNIARY HEADS:
In view of judgment of Hon'ble Supreme Court in the cases titled as Satinder Kaur@Satwinder Kaur & Ors. Vs. United India Insurance Co. Ltd. Civil Appeal No. 2706 of 2020, dated 20.06.2020, loss of consortium has to be fixed for Rs. 40,000/- for each legal heir. Further, Rs. 15,000/- each has to be awarded for loss of estate and funeral expenses. Thus a total sum of Rs.1,10,000/- (40,000/- X 2 + 15,000/- + 15,000/) is granted under this head.
In view of this, petitioner no. 1 shall be entitled for total compensation of Rs.53,35,000/- (Rs.52,65,000/- + Rs. 70,000) and petitioner no. 2 shall be entitled to a sum of Rs.40,000/-.
19. The total compensation awarded to the petitioner no. 1 is summarized as under:
1. Loss of dependency / Contribution Rs.52,65,000/-
to family:
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 20 of 39
2. Loss of Estate: Rs.15,000/-
3. Loss of consortium : Rs.40,000/-
4. Funeral Charges Rs.15,000/-
Total = Rs. 53,35,000/-
The petitioner no. 2 shall be entitled to a sum of Rs.40,000/- towards loss of consortium.
(MACT No.1145/16: In Re - Sh. Ajay Kumar Mathur)
20. In the instant claim petition, Ms. Saloni Mathur expired in the 'Road Vehicular Accident'. To determine the compensation in a fatal case, three facts need to be established by the claimants: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents.
(i) Age of deceased: The age of deceased is necessary to apply the multiplier. As per the Passport of deceased Mark A, her date of birth was 01.11.1992 and the accident took place on 06.10.2014, accordingly, the age of deceased was 21 years at the time of accident.
(ii) Determination of Income of deceased : After deciding the age of deceased, her income needs to be determined. The father of deceased testified as PW1 and deposed that at the time of accident, his daughter was pursuing M.A. Clinical MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 21 of 39 Physiology Ist Semster from Amity Institute of Health and Allied Sciences, Amity University, U.P. He testified that the deceased had a very bright future and would have at least drawn a starting salary of Rs.25,000/- - Rs.30,000/- per month after completion of her studies. The petitioners examined Sh. Ashwani Mohan, Assistant Professor, Amity Institute of Psychology and Allied Sciences, Amity University, U.P. as PW- 3 and he testified that the deceased was student of M.A. Clinical Psychology of 2014 - 2016. The petitioners also filed on record copy of the Identity Card issued to the deceased showing that she was a student M.A. Clinical Psychology and have also placed on record the Marksheets of the deceased of B.A. (Hons.) in Applied Psychology to establish that the deceased was a brilliant student.
PW-3 Sh. Ashwani Mohan also testified before the Tribunal that an average student of M.A. Clinical Psychology get placement in a company at monthly salary of Rs.20,000/- - Rs.30,000/- while a brilliant student can get a placement at a starting salary of Rs.50,000/- per month. In this regard, PW-3 also placed on record the offer letters issued to some students of M.A. Clinical Psychology of his Department which are Ex.PW3/1 and Ex.PW3/2. He also testified that the deceased was a brilliant student and that after completion of the course she would have been offered placement at a starting salary of Rs.50,000/- per month. Considering the academic record of MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 22 of 39 deceased, the institute from which she was pursuing M.A. Clinical Psychology and considering the offer letters that were received by several students of the same department, it can be inferred that the deceased after completion of course of M.A. Clinical Psychology would have received placement in Private Sector at a starting salary of at least Rs.30,000/- per month. Thus, the annual income of deceased comes to be Rs.3,60,000/-.
(iii) Number of dependents : The instant claim petition has been filed by mother and father of deceased being legal heirs of deceased. Petitioner No. 1 is the father and petitioner no. 2 is mother of deceased. Therefore, the deceased left behind two legal heirs, who are entitled to compensation.
(iv) Multiplier applicable in this case - As the age of the deceased has been ascertained, an appropriate multiplier has to be determined. The judgment titled as Sarla Verma v. DTC, (2009) 6 SCC 121 is relevant to consider the multiplier. Para 21 of the judgment has laid down the multiplier as per age as under:-
MULTIPLIER AGE GROUP OF DECEASED
M-18 Age groups between 15 to 20 and 21 to
25 years)
M-17 Age groups between 26 to 30 years,
M-16 Age groups between 31 to 35 years,
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 23 of 39
M-15 Age groups between 36 to 40 years,
M-14 Age groups between 41 to 45 years,
M-13 Age groups between 46 to 50 years,
M-11 Age groups between 51 to 55 years,
M-9 Age groups between 56 to 60 years,
M-7 Age groups between 61 to 65 years
M-5 Age groups between 66 to 70 years.
In view of the above said judgment, a multiplier of 18 has to be applied against 21 years of age of the deceased to determine the compensation.
(v) Necessary deductions out of earnings of the deceased towards personal expenses: After choosing the age, multiplier and income of the deceased, necessary deductions have to be made out of the income of the deceased towards his personal expenses. Hon'ble Supreme Court in case titled as Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65, in Para 30, has laid down the necessary deductions towards personal living and expenses of deceased as under:
Number of Deductions out of earning of the deceased.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 24 of 39 dependents Half / ½ Where dependent is 1 1/3rd Where the number of dependent family members is 2 to 3 1/4th Where the number of dependent family members is 4 to 6, 1/5th Where the number of dependent family members exceeds 6 (six).
The father and mother are legal heirs of the deceased. As there are only two legal heirs of the deceased, 1/3 earnings of the deceased has to be considered towards deductions out of her yearly earnings. As such, 1/3 amount out of annual income of Rs.3,60,000/- i.e. Rs.1,20,000/- p.a. has to be reduced towards personal expenses. Thus, the deceased was earning Rs.2,40,000/- after deduction of 1/3 amount towards personal expenses.
(vi) Future prospects : Besides it, future income of the deceased is also to be considered in view of judgment of Hon'ble Apex Court titled as National Insurance Company Limited vs. Praney Sethi & Ors, SLP (Civil) No. 25590 of 2014 decided on 31.10.2017 in which it is observed as under:-
"(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors.
MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 25 of 39 age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(viii) 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 aforesaid amounts should be enhanced at the rate of 10% in every three years."
In view of the above said judgment, 40% amount is to be considered towards future income of the deceased who was aged around 21 years but had no permanent employment.
(vii) Loss of Dependency : It has been observed that the deceased was earning Rs.2,40,000/- p.a after 1/3 deduction. This annual income has to be multiplied by a multiplier of 18 as per Sarla Verma v. DTC (supra). Rs.2,40,000/- x 18 = Rs. 43,20,000/-. Thereafter, 40% income towards future income of the deceased has to be added in terms of National Insurance Co. v. Pranay Sethi (Supra) i.e. Rs.17,28,000/- has to be added to above said amount i.e. Rs.43,20,000/- + MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 26 of 39 Rs.17,28,000/- = Rs.60,48,000/-.
(viii) COMPENSATION UNDER NON PECUNIARY HEADS:
In view of judgment of Hon'ble Supreme Court in the case titled as Satinder Kaur@Satwinder Kaur & Ors. Vs. United India Insurance Co. Ltd. Civil Appeal No. 2706 of 2020, dated 20.06.2020, loss of consortium has to be fixed for Rs. 40,000/- for each petitioner. Further, Rs. 15,000/- each has to be awarded for loss of estate and funeral expenses. Thus a total sum of Rs. 1,10,000/- (40,000/- X 2 + 15,000/- + 15,000/-) is granted under this head.
In view of this, petitioners shall be entitled for total compensation of Rs.61,58,000/- (Rs.60,48,000/- + Rs.1,10,000/-).
21. The total compensation awarded to petitioners is summarized as under:-
1. Loss of dependency / Contribution Rs. 60,48,000/- to family:
2. Loss of Estate: Rs.15,000/-
3. Loss of consortium : Rs.80,000/-
4. Funeral Charges Rs.15,000/-
Total = Rs. 61,58,000/-
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 27 of 39
22. LIABILITY: Now, the question arises as to which of the respondent is liable to pay the compensation amount. The driver of the offending vehicle was the principle tort feasor, however, he has expired and respondent Sh. Shiv Kumar is vicariously liable being the owner of the offending vehicle. The offending vehicle was insured at the time of accident and the respondent Insurance Company i.e. M/s. Cholamandalam MS General Insurance Company Limited has contractual and statutory liability to indemnify the insured. 22.1 The respondent insurance company submitted during final arguments as well as in the written submissions, that it is not liable to indemnify the owner Sh. Shiv Kumar as the vehicle was being driven in violation of terms of permit at the time of accident. It is submitted by the Insurance Company that as per the permit and Insurance Policy only 12 passengers and one driver were allowed to travel in the offending vehicle, whereas, at the time of accident 16 passengers and the deceased driver were traveling in the offending vehicle. The Insurance Company further submitted, in its written submissions, that the liability of the Insurance Company to indemnify the owner is confined to only 12 passengers and one driver and not beyond that. Insurance Company stated that it has already compensated 12 passengers who were in the said vehicle at the time of accident and as such the Insurance Company is no longer liable to indemnify the owner for the compensation to be MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 28 of 39 paid with respect to any other passenger of the offending vehicle. The Insurance Company in this regard also relied upon judgments titled as Oriental Insurance Company Limited Vs. Sony Cheriyan AIR 1999 SC 3252, New India Assurance Company Ltd. Vs. Harshadbhai Amrutbhai Modhiya CDJ 2006 SC 365 and United India Company Limited Vs. Sheela dated 22.03.2017 (Madras High Court). 22.2 Ld Counsel for owner, in his written submissions, submitted that the Insurance Company out of its free will entered into settlement in several matters relating to the accident and that even in the present matters, it was willing to compromise, but the settlement could not take place as parties were not able to agree on the amount. He further submitted that there is nothing on record to prove that at the time of accident, the number of passengers sitting in the offending vehicle were more than the passengers permitted as per the terms of the permit. He submitted that no extra seat / chair was found in the offending vehicle and as such the Insurance Company is liable to pay the compensation and indemnify the owner, as the offending vehicle was being driven by the deceased driver who was holding a valid driving license to drive the same.
22.3 Perusal of the affidavit of owner Sh. Shiv Kumar reveals that in his affidavit, he has admitted that the offending vehicle was booked for 'Jay Travels' through 'Vinay Tour and Travels' MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 29 of 39 for a trip to Nanital from 05.10.2014 to 07.10.2014. The said respondent also testified that he was provided list of 12 passengers who were to travel in the said offending vehicle and he categorically mentioned in para no. 6 that "12 passengers were booked as per the capacity of the vehicle". The respondent / owner, therefore, admitted that the capacity of the offending vehicle was of 12 passengers. 22.4 As per the testimony of the petitioners in both the petitions, in total 16 passengers were traveling in the offending vehicle excluding the driver. PW-2 Ms. Shubangi Mehrish, who was also one of the passengers in the offending vehicle, categorically testified, in her examination in chief as well as in her cross examination, that there were 17 people inside the vehicle at the time of accident including the driver. The said witness, in her cross examination by ld. counsel for owner, stated that the capacity of the offending Tempo Traveler was of 18 passengers including the driver, but the said portion of her deposition is based on what she perceived and not based upon the actual terms and conditions of permit.
22.5 The Insurance Company categorically relied upon the permit of the offending vehicle wherein it is specifically mentioned at serial no. 11 that the seating capacity of the offending vehicle was "12 + one".
22.6 Therefore, from the record as well as testimonies of petitioners, it is clear that at the time of accident the number of MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 30 of 39 passengers in the offending vehicle were 16, which is more than the permissible limit of 12 as mentioned in the permit. 22.7 The question before the Tribunal is whether the said violation of the permit would completely absolve the Insurance Company of its liability to indemnify the respondent owner or not?
22.8 As per the terms of the Insurance Policy, "the policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 falling under the sub section 3 of Section 66 of Motor Vehicles Act, 1988".
22.9 Further, the insurance policy specifically mentions that the seating capacity of the insured vehicle (offending vehicle) is 12 plus one driver.
22.10 In this regard, the Tribunal relies upon the judgment titled as National Insurance Co. Ltd. v. Anjana Shyam, (2007) 7 SCC 445 wherein a bus having carrying capacity of 42 passengers, one driver and one conductor, in terms of Section 147(1)(b)(ii) of the Motor Vehicles Act, was insured for 42 passengers. The route permit of the vehicle was for carrying 42 passengers other than the driver and the conductor. At the time of accident, the bus was carrying at least 90 passengers. The bus fell off the road into a nullah leading to the death of 26 including the one who was driving the vehicle and injuring 63 persons. The legal representatives of the deceased and the injured, all approached the Motor Accident Claims Tribunal MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 31 of 39 claiming compensation and seeking its adjudging on applications made under Section 166 of the Motor Vehicles Act, 1988. The claim was resisted by the owner, the insured and by the insurance company. The insurance company mainly contended that the bus was overloaded; that it was being driven not by an authorized driver at the time of the accident; and that the insurance company had no liability. Alternatively, it was sought to be pleaded that the owner having permitted the vehicle to be overloaded had committed a fundamental breach of the contract of insurance and therefore the insurance company could repudiate the policy and hence was not liable for the compensation that may be adjudged.
22.11 In these facts, Hon'ble Apex Court observed as under:-
"17. As early as in 1846, Dr. Lushington in R. v. Eduljee Byramjee [(1846) 3 MIA 468] posited that to ascertain the true meaning of a clause in a statute the court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. This Court has accepted this approach in innumerable cases. Thus, the expression "any passenger" must be understood as passenger authorised to be carried in the vehicle and "use of the vehicle" as permitted use of the vehicle. Affording of insurance for more number of passengers than permitted, would be illegal since in that case the manifest intention would be the overloading of the vehicle, something not contemplated by law. Thus, it is not possible to accept a contention that the insurance can be taken to cover more passengers than permitted by the certificate of registration and the permit as a stage carriage and that it will cover all the passengers overloaded. Of course, in these cases, there is no dispute MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 32 of 39 that the insurance cover took in only the permitted number of passengers.
18. In this situation, the insurance taken out for the number of permitted passengers can alone determine the liability of the Insurance Company in respect of those passengers. In terms of Section 149 of the Act, the duty of the insurer is only to satisfy judgments and awards against persons insured in respect of the third-party risk. Obviously, this is to the extent the third-party risk is coverable and is covered. Section 149 of the Act speaks of judgment or award being obtained against any person insured by the policy and the liability of the insurer to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder subject to any claim the insurer may have against the owner of the vehicle. Section 149 could not be understood as compelling an Insurance Company to make payment of amounts covered by decrees not only in respect of the number of persons covered by the policy itself but even in respect of those who are not covered by the policy and who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute.
19. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the Insurance Company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third-party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 33 of 39 passengers to be carried in the vehicle can be understood only as passengers authorised or permitted to be carried in the vehicle.
20. In spite of the relevant provisions of the statute, insurance still remains a contract between the owner and the insurer and the parties are governed by the terms of their contract. The statute has made insurance obligatory in public interest and by way of social security and it has also provided that the insurer would be obliged to fulfil his obligations as imposed by the contract and as overseen by the statute notwithstanding any claim he may have against the other contracting party, the owner, and meet the claims of third parties subject to the exceptions provided in Section 149(2) of the Act. But that does not mean that an insurer is bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent of the passengers permitted to be insured or directed to be insured by the statute and actually covered by the contract.
21. The High Court has considered only the aspect whether by overloading the vehicle, the owner had put the vehicle to a use not allowed by the permit under which the vehicle is used. This aspect is different from the aspect of determining the extent of the liability of the Insurance Company in respect of the passengers of a stage carriage insured in terms of Section 147(1)(b)(ii) of the Act. We are of the view that the Insurance Company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading.
22. Then arises the question, how to determine the MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 34 of 39 compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the Insurance Company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy.
23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the Insurance Company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal should take into account the higher of the 42 awards made, add them up and direct the Insurance Company to deposit that lump sum. Thus, the liability of the Insurance Company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the Insurance Company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the Insurance Company would be liable to deposit. It will be for the Tribunal MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 35 of 39 thereafter to direct distribution of the money so deposited by the Insurance Company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately."
22.12 In light of the aforesaid judgment, the Insurance Company, in the present case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy i.e. 12 passengers. The insurance company will not be compelled to deposit the lowest of the amounts of compensation awarded beyond the extent of the number of passengers covered by the insurance policy i.e. 4 additional passengers in the present case.
22.13 The question of the payment of the entire compensation first by the insurance company and thereafter its recovery from the owner therefore does not arise at all, as the insurance company is only liable to pay the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy and compensation MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 36 of 39 awarded beyond that is liable to be paid by the owner and not the insurance company.
22.14 As per the written submission filed by the respondent- insurance company, it has already paid compensation to 12 injured persons/claimants and the lowest two compensations paid out of those 12 claims are of Rs.25,000/- and Rs.30,000/- paid to Master Shresht Tomar and Mr Pallav Kansal respectively. The said submissions need to be verified from the record and subject to the said verification, it is ordered that the insurance company shall be liable to deposit the entire compensation awarded by way of present award minus/less the sum of Rs.55,000/- already paid as compensation to Master Shresht Tomar and Mr Pallav Kansal with respect to the same accident. The said amount of Rs.55,000/- is subject to verification of record and may be modified by the Tribunal based on the verification, before disbursal of the amount to the claimants in the present two petitions.
22.15 The respondent owner shall be liable to pay the said amount of compensation of Rs.55,000/- or the amount as modified by the Tribunal after verification of records. RELIEF:
In MACT No. 1371/1623. In view of the findings on the issues, this tribunal awards a compensation of Rs. 53,75,000/-, out of which Rs.53,47,500/-
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 37 of 39 (Rs.53,75,000/- minus Rs.27,500/-1) alongwith interest @ 9% per annum from the date of filing of the petition till its realization is to be paid by the respondent no. 1 i.e. M/s. Cholamandalam MS General Insurance Company Limited within 30 days from the date of this award. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the Tribunal during the pendency of this case. The respondent Insurance Company i.e. M/s. Cholamandalam MS General Insurance Company Limited is directed to give notice regarding deposit of the said amount to the petitioners and their counsel.
Respondent / owner Mr. Shiv Kumar is held liable to deposit sum of Rs.27,500/-2 alongwith interest @ 9% per annum from the date of filing of the petition till its realization within 30 days from the date of this award.
In MACT No. 1145/1624. In view of the findings on the issues, this tribunal awards a compensation of Rs. 61,58,000/-, out of which Rs.61,30,500/- (Rs. 61,58,000/- minus Rs.27,500/-3) alongwith interest @ 9% per annum from the date of filing of the petition till its realization 1 The said amount may be modified by the Tribunal after verification of the records and the excess or shortfall, if any, in that case shall be refunded or liable to be paid accordingly as per the orders of the Tribunal passed during disbursal proceedings. 2 The said amount may be modified by the Tribunal after verification of the records and the excess or shortfall, if any, in that case shall be refunded or liable to be paid accordingly as per the orders of the Tribunal passed during disbursal proceedings. 3 The said amount may be modified by the Tribunal after verification of the records and the excess or shortfall, if any, in that case shall be refunded or liable to be paid accordingly as per the orders of the Tribunal passed during disbursal proceedings.
MACT No. 1371/16 Smt. Archana Gupta Vs. M/s. Cholamandalam & Ors. MACT No. 1145/16 Sh. Ajay Kumar Mathur Vs. Shiv Kumar & Ors. Page No 38 of 39 is to be paid by the respondent Insurance Company i.e. M/s. Cholamandalam MS General Insurance Company Limited within 30 days from the date of this award. The interim compensation, if any, shall be adjusted against this award amount along with the waiver of interest, if any as directed by the Tribunal during the pendency of this case. The respondent Insurance Company i.e. M/s. Cholamandalam MS General Insurance Company Limited is directed to give notice regarding deposit of the said amount to the petitioner No.1 and her counsel.
Respondent / owner Mr. Shiv Kumar is held liable to deposit sum of Rs.27,500/-4 alongwith interest @ 9% per annum from the date of filing of the petition till its realization within 30 days from the date of this award.
With these observations, both claim petitions stand disposed off. A copy of this award be given to the parties free of cost.
File be consigned to Record Room and a separate file for compliance be maintained which shall be listed on 04.03.2021.
Announced in open court (SHUCHI LALER)
On 07.01.2021 PO-MACT/SHAHDARA
KARKARDOOMA COURTS,
SHUCHI DELHIsigned by SHUCHI
Digitally
LALER
LALER Date: 2020.01.08 14:19:42 +0530
4 The said amount may be modified by the Tribunal after verification of the records and the excess or shortfall, if any, in that case shall be refunded or liable to be paid accordingly as per the orders of the Tribunal passed during disbursal proceedings.
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