Gujarat High Court
Pragjibhai Bhagvanbhai Kanzariya vs Rajubhai Ramsingbhai Parmar on 7 August, 2024
NEUTRAL CITATION
C/FA/4778/2018 JUDGMENT DATED: 07/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4778 of 2018
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NEUTRAL CITATION
C/FA/4778/2018 JUDGMENT DATED: 07/08/2024
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R/FIRST APPEAL NO. 4901 of 2018
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R/FIRST APPEAL NO. 4900 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRAGJIBHAI BHAGVANBHAI KANZARIYA & ORS.
Versus
RAJUBHAI RAMSINGBHAI PARMAR & ORS.
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1,2,3,4
DELETED for the Defendant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 2
MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/08/2024
COMMON ORAL JUDGMENT
1. The present First Appeals, under Section 173 of the Motor Vehicles Act, 1988, are preferred by the appellant/s -
original claimant/s - the present appellants, being aggrieved Page 2 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined and dissatisfied with the impugned common judgment and award dated 31.7.2018 passed by the Motor Accident Claims Tribunal, Main, Surendranagar in Motor Accident Claim Petition Nos.117 of 2015 to 129 of 2015, and M.A.C.P. Nos.
143 of 2015 and 165 to 166 of 2015, by which the learned Tribunal has awarded compensation to the claimants as stated in the impugned judgment and award to the claimant/ s, holding the opponent no.2-owner liable to pay the compensation and exonerated the opponent no.3-insurance company.
2. As common question of facts and law are involved in the present first appeals, with the consent of learned advocates for the parties, all these appeals are disposed of by this common judgment. The parties are referred to as per their original status before the learned Tribunal for the sake of convenience.
3. Brief facts of the case are as under:
3.1 The claimants filed the claim petitions stating that the deceased persons and the injured were travelling in the tourist Luxury Bus No.GJ-14X-9900, which was driven by the opponent no.1-driver in a rash and negligent manner and with excessive speed and when the bus reached at the point Page 3 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined of Jhyarlekhola of East-West Highway, District Dhading, Village Development Community, Naubise, Ward No.5, Nepal, the luxury bus driver lost control over the vehicle, due to which the luxury bus fell into 200 meter deep valley and all the passengers received grievous injuries due to which some were permanently disabled and some died. Therefore, the injured persons and the legal heirs of the respective deceased persons have filed the claim petitions claiming the compensation.
3.2 Upon service of notice to the opponents, the opponent nos.2,3 and 4 appeared and filed their replies denying the contents of the claim petitions and also denying their liability to pay the compensation. Thereafter, the learned Tribunal has framed the issues. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petitions by awarding compensation as mentioned in the impugned judgments and awards. 3.3 Being aggrieved and dissatisfied with the impugned judgments and awards passed by the Tribunal, the present appeals are preferred by the claimant/s. Page 4 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024
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4. Heard learned advocates for the parties.
4.1 The impugned judgments and awards are assailed mainly on the grounds of the exoneration of the insurance company from the liability to pay the compensation and also on the ground of quantum.
4.2 Learned advocate Mr.Darji for the appellants has submitted that from the record and on perusing the impugned judgment, the learned Tribunal has committed gross error in not holding the insurance company liable to pay the amount of compensation to the claimants; that it is an admitted fact that the claim petitions are filed pursuant to the accident occurred when the luxury bus owned by respondent no.2 has carried all the passengers in the luxury bus and was travelling from Surendranagar to Nepal and when the bus was going in Nepal, the bus fell in deep valley due to which some of the claimants have received injuries and some passengers died and therefore the claim petitions are filed; that the learned Tribunal has wrongly exonerated the insurance company though the valid insurance was there in existence on the date of the accident and the premium is paid for the third party insurance and the claimants being passengers travelling in the bus are obviously third party to the bus in question. Therefore, the insurance company is Page 5 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined liable to pay the amount to the claimants.
4.3 He has drawn my attention that the learned Tribunal has wrongly interrupted the clause that the insurance company is not liable to pay the amount if the accident occurred outside India. There is no logic behind that clause and when there is a treaty between Nepal and India whereby even the passport is also not required to visit Nepal and more particularly, when the fact coming on the record clearly indicates that the valid permit is issued by the RTO Surendranagar as well as RTO, Amreli at the relevant point of time and even valid permit is received from Nepal which is part of the record that is special permit issued by the government authorities of Nepal and therefore, it cannot be said that the bus was travelling without valid permit or it can be said that though technically the bus is travelling in Nepal but considering the fact that there is treaty of trade and other treaties are in existence between Nepal and India and therefore in the case of tourist travelling in Nepal, such interpretation that the accident is not caused within the geographical limit of India cannot be considered. He further submitted that assuming that there is breach of condition by the owner of the vehicle then also, it cannot be considered as technical breach and therefore the order of at least pay and recover is required to be passed by considering various Page 6 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined judgments of the Hon'ble Apex Court.
4.4 He further submitted that the learned Tribunal has considered the issue regarding the maintainability of petitions under the MV Act and after discussing the law on this point, the learned Tribunal has held that the claim petitions are maintainable.
4.5 In support of his submissions, he has referred to the judgment of the Hon'ble P & H High Court in the case of Anil Kumar V/s Roop Kumar Sharma and another reported in 2019 ACJ 381, more particularly, paragraph nos.13,14,16,17, 18, 19 to 22, whereby such issue is considered by the Hon'ble High Court of P & H and held that in such cases, where the accident has occurred outside India, then also, after considering various aspects and more particularly sections 139 and 149 of the MV Act, the insurance company cannot shrug away from its liability to pay the amount of compensation. He, therefore, submitted that in view of this judgment, the appeals are required to be allowed by holding the insurance company liable or alternatively the Court can direct the insurance company to first pay the amount of compensation as risk of the third party is already covered and the insurance policy is in existence on the date of the accident and thereafter recover Page 7 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined the amount from the owner of the bus in view of the judgment of the Hon'ble Apex Court in the case of Khenyei V/s New India Assurance Company Limited reported in 2015(9) SCC 273.
4.6 On the second ground of quantum, learned advocate for the appellants has submitted that the compensation under various heads is required to be enhanced as the learned Tribunal has considered the same on lower side. The income is required to be considered as per the minimum wages prevailing at the time of the accident in view of the judgment of Govind Yadav versus New India Insurance Co.
Ltd., reported in (2011) 10 SCC 683. Further, he submitted that the compensation under the head of consortium, funeral expenses, loss of estate in cases of fatal accident is required to be enhanced and under the head of actual loss of income, pain, shock and suffering, attendant, transportation and special diet charges in cases of injured persons is required to be enhanced in view of the judgments of the Hon'ble Apex Court in the cases of National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680, Sarla Verma V/s Delhi Transport Corporation reported in (2009)6 SCC 121, Magma General Insurance Company Ltd. V/s Nanu Ram and Others reported in (2018)18 SCC 130, Mohd.Sabeer V/s Regional Manager U.P.State Road Trans.Corpn, reported Page 8 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined in 2023 ACJ 1 and United India Insurance Co. Ltd., versus Satinder Kaur @ Satwinder Kaur reported in (2021) 11 SCC
780. He, therefore, prayed to allow these appeals on both the grounds.
5. Per contra, learned advocate Mr.Hakim for the opponent no.2-owner of the vehicle has submitted that the insurance company is wrongly exonerated from the liability; that the insurance company has raised the contention before the learned Tribunal and the Tribunal has also waived that certain aspect that at the time of accident, the driver was not holding any licence. The learned Tribunal has also considered that the accident has occurred outside the geographical limits of India; that the learned Tribunal has considered the aspect that no extra premium is paid for outside geographical limit of India that the learned Tribunal is also impressed by the submission made by the insurance company that the provisions of the MV Act cannot be applied for the accident that happened in Nepal and therefore the learned Tribunal in India cannot decide the said claim petitions; that though he is the owner of the vehicle, in the alternative if the learned Tribunal would have come to the conclusion that there is no absolute liability of the insurance company to pay the amount of compensation jointly with the owner, then the learned Tribunal could have certainly Page 9 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined directed the insurance company first to pay the claimants and recover from the owner.
5.1 He referred to the provisions of the MV Act and submitted that considering the policy which is issued by Iffco Tokyo, and the extra premium as per the policy, the owner of the bus after obtaining necessary permit from the concerned RTO of Government of India which indicated that the travelling to Nepal started, the passengers are citizens of India and before entering into the territory of Nepal, necessary permits were obtained after paying the requisite fees at the border of India and Nepal. Unfortunately, while bus was travelling in Nepal it met with the accident and several persons suffered serious injuries and some of them had expired because of injuries sustained in the accident which gave rise to the claim petitions before the MACT, Surendranagar which is absolutely maintainable in the eye of law.
5.2 He referred to the provisions of the treaties between two countries Nepal and India i.e. Agreement between the Government of the Republic of India and the Government of Nepal for the Regulation of Passenger Traffic Between the Two Countries and submitted that from the provisions of the said agreement and considering the communication of the Page 10 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Consulate General of India, Birgunj, Nepal the vehicle permit is also required to be considered accordingly.
5.3 Lastly, he has referred to the judgment of the High Court of Karnataka in case of The Claim Manager, Royal Sundaram Alliance Insurance Company Limited V/s Mahadevi in MFA 5355 of 2016 decided on 12.1.2021 and submitted that the Court has committed error in absolving the insurance company from liability to pay the compensation. In the alternative, he has submitted that if this Court is of the opinion that the insurance company cannot be saddled with the liability, then also, considering the fact that the breach, if any, can be considered to the extent of technical breach and not substantial breach and therefore considering the judgment of Shamanna and Another V/s Divisional Manager, Oriental Insurance Company Limited and others reported in (2018)9 SCC 650 as well as Shivraj versus Rajendra and another reported in 2018 ACJ 2755 , the Court could have passed the order of pay and recover.
6. Learned advocate Mr.Saxena appearing for the insurance company has strongly opposed the contention raised by the claimants as well as the owner and he has submitted that from the record it is undisputed fact that no extra premium, though there is provision in the policy itself for the extra Page 11 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined premium for outside geographical limit of India, is not paid and therefore, it cannot be said that the risk is covered outside geographical limit of India. He has submitted that such policy which is produced on the record is also required to be considered differently as pass issued by Nepal authority and pass issued in India are having different claim of the owner of the vehicle, though on inquiry put up by the court, he has fairly admitted that the permit is issued for the same luxury bus registered with number GJ-14X-9900. He has further submitted that the findings in paragraph nos.58 to 61 of the Tribunal's order is just and proper and that the amount which is awarded by way of compensation could not be considered as lesser amount and considering the aspect of just compensation awarded by the Tribunal is otherwise just and proper and there cannot be any room for enhancement.
7. In support of his submissions, he has relied on the judgments in the cases of Gohar Mohammed V/s Uttar Pradesh State Road Transport Corporation And Others reported in 2023(4) SCC 381 and Export Credit Guarantee Corpn. Of India Ltd. V/s Garg Sons International reported in II(2013) CPJ 1 (SC), whereby the Hon'ble Apex Court has considered the aspect of interpretation of policy document and submitted that accordingly the appeals are found meritless and required to be dismissed as no interference is called for.
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8. I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. and the judgments relied on by learned advocates for the parties.
9. At the outset, the relevant provisions of MV Act are Sections 139, 146, 147, 149(3) and 166 which read as under:
"139. Power of Central Government to make rules.--(1) The Central Government may, by notification in the Official Gazette, make rules for all or any of the following purposes, namely:--
(a) the grant and authentication of travelling passes, certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India or to persons temporarily proceeding out of India to any place outside India and desiring to drive a motor vehicle during their absence from India;
(b) prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India; and Page 13 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined
(c) prescribing the conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India. (2) For the purpose of facilitating and regulating the services of motor vehicles operating between India and any other country under any reciprocal arrangement and carrying passengers or goods or both by road for hire or reward, the Central Government may, by notification in the Official Gazette, make rules with respect to all or any of the following matters, namely:--
(a) the conditions subject to which motor vehicles carrying on such services may be brought into India from outside India and possessed and used in India;
(b) the conditions subject to which motor vehicles may be taken from any place in India to any place outside India;
(c) the conditions subject to which persons employed as drivers and conductors of such motor vehicles may enter or leave India;
(d) the grant and authentication of travelling passes, certificates or authorisations to persons employed as drivers and conductors of such motor vehicles;
(e) the particulars (other than registration marks) to be exhibited by such motor vehicles and the manner in which such particulars are to be exhibited;
(f) the use of trailers with such motor vehicles;
(g) the exemption of such motor vehicles and their drivers Page 14 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined and conductors from all or any of the provisions of this Act [other than those referred to in sub-section (4)] or the rules made thereunder;
(h) the identification of the drivers and conductors of such motor vehicles;
(i) the replacement of the travelling passes, certificates or authorisations, permits, licences or any other prescribed documents lost or defaced, on payment of such fee as may be prescribed;
(j) the exemption from the provisions of such laws as relate to customs, police or health with a view to facilitate such road transport services;
(k) any other matter which is to be, or may be, prescribed.
(3) No rule made under this section shall operate to confer on any person any immunity in any State from the payment of any tax levied in that State on motor vehicles or their users.
(4) Nothing in this Act or in any rule made thereunder by a State Government relating to:--
(a) the registration and identification of motor vehicles, or
(b) the requirements as to construction, maintenance and equipment of motor vehicles, or
(c) the licensing and the qualifications of drivers and conductors of motor vehicles, shall apply--
(i) to any motor vehicle to which or to any driver of a motor vehicle to whom any rules made under clause (b) or Page 15 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined clause (c) of sub-section (1) or under sub-section (2) apply; or
(ii) to any conductor of a motor vehicle to whom any rules made under sub-section (2) apply.
146. Necessity for insurance against third party risk.--(1) 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:
[Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).] Explanation.--A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub- section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.
(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used Page 16 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined for Government purposes unconnected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1) any vehicle owned by any of the following authorities, namely:--
(a) the Central Government or a State Government, if the vehicle is used for Government purposes connected with any commercial enterprise;
(b) any local authority;
(c) any State transport undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in accordance with the rules made in that behalf under this Act for meeting any liability arising out of the use of any vehicle of that authority which that authority or any person in its employment may incur to third parties.
Explanation.--For the purposes of this sub-section, "appropriate Government" means the Central Government or a State Government, as the case may be, and--
(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more State Governments, Page 17 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined means the Central Government;
(iii) in relation to any other State transport undertaking or any local authority, means that Government which has control over that undertaking or authority.
147. Requirements of policies and limits of liability.--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorized representative carried in the vehicle]or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of Page 18 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation.--For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--
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(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters;
and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to Page 20 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-
(3) Where any such judgment as is referred to in sub- section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is Page 21 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2)
166. Application for compensation.--(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. [(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal Page 22 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."
10. Firstly, there is sufficient material on the record i.e. insurance policy, driving licence of the driver of the luxury bus who was driving the vehicle. Considering the provisions of treaty agreement between Nepal and India, there is no need to obtain any international licence to travel to Nepal and only need is to obtain necessary permission from the competent authority of Nepal from India border which is also available on the record. It clearly transpires that no extra premium is paid towards the risk outside the geographical limit of India. However, the fact that the premium is paid for the third party risk and the passengers travelling in the Page 23 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined bus can certainly be considered as thirty party. Moreover, the permits issued by RTO authority Surendranagar as well as Amreli clearly indicates that the bus is having valid permit to travel upto Nepal and the pass which is issued be Nepal government has also legally permitted the bus to travel in Nepal. Unfortunately, the accident has occurred in the territory of Nepal. If it is assumed that the accident would have occurred while going to Nepal, at the border of Nepal or in the territory of India, then the insurance company would not be in a position to raise such dispute. However, merely because the extra premium for that territory is not paid, the insurance company has raised the dispute and the learned Tribunal has believed that to some extent and the learned Tribunal has committed error in accepting the said contention. Otherwise, on bare reading of the policy document, it is true that no extra premium is paid towards the risk of the passengers outside the geographical limit but considering the peculiar case of Nepal, such agreement is existing between the two governments where no further formalities like international driving licence or some special permit is required except entry pass to be obtained from the border. Therefore, the contention raised by the insurance company is found very hyper technical.
11. It is also required to be noted that the Punjab & Page 24 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Haryana High Court, in identical facts and circumstances, whereby also the learned Tribunal has exonerated the insurance company from the liability to pay the amount of compensation has considered the case whereby ultimately, P & H High Court has modified that award modifying to the extent about the exoneration of the liability of the insurance company and consequently the award to that extent is set aside. Thereafter, it was further directed that the liability to make the payment of the awarded amount shall be of the insurance company. Considering that judgment and when almost identical facts are there in the present case, the insurance company cannot shrug away from the liability.
12. It is fruitful to refer to the relevant paragraphs of judgment of the Hon'ble Punjab & Haryana High Court in the case of Anil Kumar (supra), wherein it is held in paragraphs 7, 12 to 21 and 23 as under:
"7. The next argument of learned counsel for the appellant is that Ex. P-12 is permit of the said bus, which authorised the bus to travel to area of Nepal. It is further submitted that the issue, whether the claim petition can be filed in India; if the accident occurred in Nepal, has already been considered by this Court in FAO No.429 of 1998 decided on 30.11.2010 titled as Sona Devi versus Amit Kumar and others. Counsel for the appellant submits that Page 25 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined in that case, the Tribunal held that the claim petition is not maintainable in India, if the accident had taken place out of India. However, this Court remanded the matter to the Tribunal for the decision of the same, on merits, after holding that claim petition can be filed in India.
12. A bare perusal of Sections 146 and 147 of the Act makes it clear that the insurance policy is attached to the 'vehicle' in question and not to Geographical expense of the area of operation of the vehicle in question. The only requirement for coming in operation of the policy liability is;
the use of vehicle in any public place. Therefore, the Insurance Company cannot avoid its liability to pay the compensation only on the ground that the vehicle was used in any particular city, state or a particular geographical area. Once a vehicle is insured qua third party it is insured for all geographical areas as per the provisions of the Act. Only plea the Insurance Company can take to avoid its liability qua third party can be; that the vehicle was not being plied in a particular geographical area in accordance with the provisions of the Act, if any, prescribed for that purpose. Every extent of liability qua third party is covered by the consolidated amount of premium required to be paid for insurance qua third party only. Therefore to cover liability qua third party in any particular geographical area the insured cannot even be asked to pay any extra premium under the provisions of the Act. So the Insurance Company Page 26 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined cannot even avoid its liability qua third party, on the ground that it can charge extra premium to cover any particular geographical area and that the insured has not paid that extra premium to cover that particular geographical area. Once insured, the vehicle is insured to cover all geographical areas; where the vehicle is authorized by the authorities to travel.
13. One can come across a thought that the Motor Vehicles Act extends only to 'whole of India' as per its section 1, so it does not cover the area outside India. However, this rational also does not exempt the Insurance Company from liability arising from the usage of the vehicle outside the geographical area of the Union of India. This section also implies that the Act would be applicable to all the citizens and subjects of India qua all the Motor Vehicular aspects in India. It does not exclude the liability of one citizen or entity of India qua the other citizen of India even if the same is incurred outside the geographical area of Union of India, particularly, when the liability is arising from the use of vehicle registered and insured in India. The extra-territorial jurisdiction of a sovereign nation state over its citizen and their rights and liabilities is well recognized concept of jurisprudence. The sovereign Nation State has plenary powers to make law regarding its citizens and subjects; irrespective of territorial limits, may be, for enforcement of such law in another country the reciprocity Page 27 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined may be required. Extra-territorial jurisdiction of a nation state is, jurisprudentially valid on the basis of the 'causes and effects' qua the territory, citizens, subjects and objects of a nation state. Indian Parliament too has this power to legislate for extraterritorial causes and effects, as clarified by Article 245 of the Constitution of India. Hence the Motor Vehicles Act shall also govern the rights and liabilities of citizens and subjects of India; arising from the provisions of Motor Vehicles Act, irrespective of territorial limits.
14. This intention of the Parliament to give extraterritorial effect to the provisions of this aspect of the Act is further clarified by the provisions; as contained in Sections 139 and 149 of the Motor Vehicles Act. Section 139 gives powers to the Government of India to make rules regarding the travelling of the vehicles registered in India to other countries. Section 149 (3) makes the Insurance Company liable to satisfy the decree or award for the accidents occurring outside India, even if the same is passed by a foreign Court, but according to provision of Section 149. If the award of a foreign Court passed as per provisions of Section 149 of the Act is enforceable against an Insurance Company in India, then there is no question of the liability of Insurance Company being excluded in Courts in India on the ground that accident occurred outside India.
15. It is not even disputed by learned counsel for the Page 28 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined respondents that the bus in question had the necessary permission to ply in the area of Nepal. Therefore, its insurance policy would be deemed to be validly permitted to travel in the area of travel of the bus. Hence, for the liability arising from the accident involving the vehicle entitled to ply in Nepal, the insurer of the vehicle would be very much liable to make the payment.
16. Still further, the bare perusal of the policy shows that the policy and the schedule produced on record by the appellant do not show any restriction of geographical area in terms of exclusion of the liability of the insurer. The policy produced on record by the appellant shows that this policy does not have any restriction against plying the vehicle outside India. In the name of limitation as to use, only organised racing, reliability test and speed testing have been excluded; in terms of the Motor Vehicles Act. There is no such clause mentioned; as excluding liability of the Insurance Company; for an accident happening outside India.
17. Athough, the copy of the insurance policy produced on record by the Insurance Company as Ex. R-4 contains a vague writing, which speaks "Geographical area/zone India". However, comparison of the policies Exhibits R-3 and R-4 show that the policy numbers on these two policies are different. The policy Ex. R-4 carries different details regarding the premium paid and even regarding the details Page 29 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined of the vehicle insured. So, it is obvious that the Insurance Company has tried to place on record the insurance policy not pertaining to the bus in question to avoid its liability. This attempt has been made by the Insurance Company; only for one reason that this policy contains stipulation regarding the 'geographical area/zone' which mentions 'India', whereas the original policy/cover note produced by the appellant does not show any such restriction. Therefore, on the basis of this policy Exhibit R-4, which is not even proved to be the policy of the bus in question, the Insurance Company can not avoid its liability to make the payment of the compensation, awarded on account of accident involving the vehicle in question.
18. Faced with this situation, learned counsel for the respondent-Insurance Company submits that the limitation for liability of insurance qua area of operation outside India has been defined by 'India Motor Tariff' and therefore, Insurance Company cannot be held liable for any accident which occurred outside the territorial limits of Union of India.
19. For that purpose, the counsel relies upon the document Ex. R-7, which contains a specimen of the endorsement advised to be included in the policy. However, this document itself is not a legal document to exclude the statutory liability of Insurance Company. This is only a Page 30 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined suggestion of the Advisory Committee. This was required to be included in the policy by individual Insurance Company, if at all considered appropriate and desirable by it, while insuring a vehicle. This document in itself is not sufficient to exclude the liability of the Insurance Company in an accident which occurred outside the territorial jurisdiction of India.
20. As stated above, nothing has been placed on record by the Insurance Company to show that the insurance policy regarding this particular vehicle contained this stipulation and endorsement as advised by 'India Motor Tariff'. Moreover, it is not on record; as to since when the respondent-Insurance Company started to follow this 'India Motor Tariff' Advisory, if at all, it follows the same.
21. Moreover, the competence of 'India Motor Tariff' to issue such instruction to limit the liability of Insurance Company in terms of geographical area has not been shown by the Insurance Company. No such instructions; which run counter to or dilute the liability of Insurance Company as defined under Sections 146 to 149 of the Act can be countenanced by the Court.
23. In view of the above, the findings of the Tribunal, to the extent of the exclusion of the liability of the Insurance Company, and the consequent Award to that extent, is set Page 31 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined aside. It is ordered that the liability to make the payment of the awarded amount shall be of the Insurance Company."
13. It is also fruitful to refer to the judgment of the Karnataka High Court in the matter of Mahadevi (supra), wherein it is held in paragraphs 4,8,9, 14 to 17 as under:
"4. The claim petition discloses that the claimant and others were on a pilgrimage to places in North India and Nepal by a bus bearing registration No.KA-09-A-3344 (hereinafter referred to as "offending bus" for short). It is stated that on 29.05.2010, when they were returning to India from Nepal at about 3.15 am., the bus fell into a ravine and the passengers suffered serious injuries. The claimant also suffered injuries and was treated at College of Medical Science - Teaching Hospital, Bharathpura Chitwan, Nepal and later continued treatment at Vikram Jeev Hospital. The claimant had suffered an amputation of her right arm. The police in Nepal had registered Crime No.2066/067 under Section 147, 161(2) and 162(2) of the Transportation Arrangement Act. The claimant filed a claim petition under Section 166 of the MV Act claiming compensation of a sum of Rs.50,00,000/- from the owner and the insurer of the offending bus. The claimant claimed that she was earning a sum of Rs.10,000/- per month from tailoring, embroidery and sale of sarees. Page 32 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024
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8. The Tribunal noticed that the accident which occurred on 29.05.2010 is not seriously disputed by the respondents, since the driver - owner of the offending bus had categorically admitted about the accident. The claimant who was traveling by the offending bus deposed that the driver of the offending bus was driving it rash and negligently and since he took a sharp turn, the vehicle fell down from the top of a hill. The Tribunal therefore, held that the accident was due to the rash and negligent driving by the driver of the offending bus.
9. While considering the principal contention of the insurer that it owed no obligation to indemnify the owner of the offending bus against any claim for compensation as the Motor Vehicles Act, 1988 was not applicable to the accident which occurred in Nepal, the Tribunal noticed Sections 1, 139 and 166(2) and held even if the accident had occurred in Nepal, the claimant was entitled to file a claim petition in India. It also noticed the contention of the insurer that as per the Indian Motor Tariff Regulations, an insurer could cover the risk if the owner had paid additional premium as prescribed under General Regulation No.4 of the Indian Motor Tariff Regulations. Hence, the Tribunal held that it had the territorial jurisdiction to entertain the petition.
14. Dealing with the first question regarding the applicability of the provisions of the Motor Vehicles Act, Page 33 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined 1988, Section 1 of the Motor Vehicles Act declares that it shall extend to the whole of India. However, Section 139 of the Motor Vehicles Act, 1988 permits the Central Government to make Rules for the purpose of grant and authentication of travel pass / certificate or authorization to persons temporarily taking motor vehicles outside India and may for this purpose frame Rules in respect of the matters contained therein. For the sake of convenience, Section 139 of the Motor Vehicles Act, 1988 is extracted below:
"139. Power of Central Government to make rules.--
(1) The Central Government may, by notification in the Official Gazette, make rules for all or any of the following purposes, namely:--
(a) the travelling grant and passes, authentication of certificates or authorisations to persons temporarily taking motor vehicles out of India to any place outside India or to persons temporarily proceeding out of India to any place outside India and desiring to drive a motor vehicle during their absence from India;
(b) prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India;
and
(c) prescribing the conditions subject to which persons Page 34 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined entering India from any place outside India for a temporary stay in India may drive motor vehicles in India. (2) For the purpose of facilitating and regulating the services of motor vehicles operating between India and any other country under any reciprocal arrangement and carrying passengers or goods or both by road for hire or reward, the Central Government may, by notification in the Official Gazette, make rules with respect to all or any of the following matters, namely:--
(a) the conditions subject to which motor vehicles carrying on such services may be brought into India from outside India and possessed and used in India;
(b) the conditions subject to which motor vehicles may be taken from any place in India to any place outside India;
(c) the conditions subject to which persons employed as drivers and conductors of such motor vehicles may enter or leave India;
(d) the grant travelling authentication of certificates or passes, authorisations drivers and to persons and conductors employed as of such motor vehicles;
(e) the particulars (other than registration marks) to be exhibited by such motor vehicles and the manner in which such particulars are to be exhibited;
(f) the use of trailers with such motor vehicles;
(g) the exemption of such motor vehicles and their drivers and conductors from all or any or the provisions of this Act [other than those referred to in sub-section (4)] of the rules Page 35 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined made thereunder ;
(h) the identification of the drivers and conductors of such motor vehicles;
(i) the replacement of the travelling passes, certificates or authorisations, permits, licences or any other prescribed documents lost or defaced, on payment of such fee as may be prescribed
(j) the exemption from the provisions of such laws as relate to customs, police or health with a view to facilitate such road transport services;
(k) any other matter which is to be, or may be, prescribed. (3) No rule made under this section shall operate to confer on any person any immunity in any State from the payment of any tax levied in that State on motor vehicles or their users.
(4) Nothing in this Act or in any rule made thereunder by a State Government relating to--
(a) the registration and identification of motor vehicles, or
(b) the requirements maintenance and as to equipment construction, of motor vehicles, or
(c) the licensing and the qualifications of drivers and conductors of motor vehicles, shall apply--
(i) to any motor vehicle to which or to any driver of a motor vehicle to whom any rules made under clause (b) or clause (c) of sub-14 section (1) or under sub-section (2) apply;
or Page 36 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined
(ii) to any conductor of a motor vehicle to whom any rules made under sub-section (2) apply."
15. A perusal of Section 139(2) does not mandate that a person taking his motor vehicle outside India should also obtain appropriate insurance coverage to operate the vehicle outside India. It is noted that the owner - driver of the offending bus had obtained the required permissions to take the vehicle outside India and merely because an additional premium of Rs.100/- was not paid for a geographical extension of the area, the insurer cannot escape its liability to pay the compensation. A perusal of Sections 146 and 147 of the Motor Vehicles Act, 1988 makes it clear that the insurance policy is attached to the vehicle in question and this position would not change on the area where the vehicle is put to use, so long as such area is a public place. Once the vehicle is insured and is permitted to ply in any area, then it is deemed that such vehicle carries with a policy of insurance. In similar circumstances, the Punjab and Haryana High Court in Anil Kumar Vs. Roop Kumar Sharma and another reported in 2019 ACJ 381 held that an insurer cannot avoid liability on the ground that the accident occurred outside India and that no additional premium was paid for plying outside India. It is relevant to note that the offending bus was registered in Karnataka and both the claimant and the owner of the offending bus are citizens of India and are thus, bound by the provisions of Page 37 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined the Motor Vehicles Act, 1988. The extra-territorial jurisdiction of a sovereign State qua its citizens, is a well entrenched jurisprudential concept. Yet another provision which palpably runs counter to the contention of the insurer in this case is Section 149(3) of the Motor Vehicles Act, 1988 which warrants that a Judgment of a foreign Court or by a Court in a reciprocating Country shall be honoured by the insurer, notwithstanding the fact that such insurer is either registered or not in such reciprocating Country. Thus, if the insurer is bound to honour a foreign award, it would be preposterous to contend that the insurer is not liable to honour a Judgment and Award passed in India, on the ground that the accident occurred in India. In that view of the matter, the insurer cannot escape its liability on the ground that owner of the offending bus had not paid an additional premium.
16. In so far as the maintainability of the claim petition before the Tribunal, Section 166(2) of the Motor Vehicles Act, 1988 reads as follows:
"Section 166(2) : Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries Page 38 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as my be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant."
17. Since, the claimant was a resident of Mysuru, she has opted to file the claim petition at Mysuru and therefore, the Tribunal had the jurisdiction to adjudicate the petition filed before it by the claimant."
Thus, in view of the above decisions wherein the facts are largely similar to the facts of the present case, the insurance company should also be held liable to pay the amount of compensation.
14. Even assuming for the sake of argument that the breach is committed of the policy, the insurance company can recover from the owner of the vehicle as the breach, at the best can be considered as technical breach and not substantial breach which is the cause for the accident and therefore considering the totality of facts and circumstances of the case, I am of the view that the award of the learned Page 39 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Tribunal is required to be interfered with in regard to the finding about the liability of the insurance company. The insurance company should be held liable to pay amount of compensation jointly and severally with the other tortfeasors.
15. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of `just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of `just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability.
Although such determination can never be arithmetically exact or perfect, an endeavour should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.
16. On the aspect of quantum, the amount which is awarded by the learned Tribunal is on lower side as the income is not considered as per the minimum wages prevalent at the relevant point of time in view of the judgment of the Hon'ble Apex Court in the case of Govind Yadav (supra) and Mohd.Sabeer (supra), wherein it is held that the income should be considered as per the inflation and Page 40 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined standard of income at the relevant point of time and amount is required to be considered under other heads also. Even on the heads of loss of consortium, funeral expenses, loss of estate (in fatal cases) and on the heads of pain, shock and suffering, transportation, special diet etc. (in injured cases), considering the judgment of Pranay Sethi (supra), and Magma General Insurance Company Ltd., the same is on the lower side, which is required to be enhanced from the amount awarded by the learned Tribunal in respective cases, after calculating the compensation, as below.
INJURY CASES :
FIRST APPEAL NO.4893 OF 2018: (MACP No.143 of 2015) Injured case. Aged 60 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 1,72,476/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 19% disability agreed by pursis, it comes to Rs.1597/- and multiplying it with 12 = Page 41 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Rs.19,164/- per annum and applying 9 multiplier = it will be Rs.1,72,476/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 38,500/-
Pain, shock and suffering 25,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 2,66,264/-
Less : Amount which is already awarded 1,88,000/-
Enhanced amount 78,264/-
FIRST APPEAL NO.4894 OF 2018: (MACP No.144 of 2015) Injured case. Aged 56 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 81,648/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 9% disability agreed by pursis, it comes to Page 42 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Rs.756/- and multiplying it with 12 = Rs.9072/- per annum and applying 11 multiplier = it will be Rs.81,648/-.
Actual loss of income 7644/-
Rs.7644 x 1
Medical Expenses 2,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,26,292/-
Less : Amount which is already awarded 81,300/-
Enhanced amount 44,992/-
FIRST APPEAL NO.4895 OF 2018: (MACP No.145 of 2015) Injured case. Aged 62 years. Injured was doing agriculture and masonary work Particulars Amount (Rs.) Future loss of income 84,672/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- Page 43 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024
NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined out of which deducting the amount of 12% disability agreed by pursis, it comes to Rs.1008/- and multiplying it with 12 = Rs.12,096/- per annum and applying 7 multiplier = it will be Rs.84,672/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 10,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,44,960/-
Less : Amount which is already awarded 97,500/-
Enhanced amount 47,460/-
FIRST APPEAL NO.4899 OF 2018: (MACP No.146 of 2015) Injured case. Aged 52 years. Injured was doing vegetable selling Particulars Amount (Rs.) Future loss of income 1,44,276/-
Rs.7644/- per month and adding 10% Page 44 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined
prospective income, it comes to Rs.8408/- out of which deducting the amount of 13% disability agreed by pursis, it comes to Rs.1093/- and multiplying it with 12 = Rs.13,116/- per annum and applying 11 multiplier = it will be Rs.1,44,276/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 2,500/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,97,064/-
Less : Amount which is already awarded 1,32,500/-
Enhanced amount 64,564/-
FIRST APPEAL NO.4779 OF 2018: (MACP No.147 of 2015) Injured case. Aged 52 years. Injured was doing masonary work Particulars Amount (Rs.) Page 45 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Future loss of income 2,21,892/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 20% disability agreed by pursis, it comes to Rs.1681/- and multiplying it with 12 = Rs.20,172/- per annum and applying 11 multiplier = it will be Rs.2,21,892/-
Actual loss of income 30,576/-
Rs.7644 x 6
Medical Expenses 2,35,000/-
Pain, shock and suffering 25,000/-
Special diet, Attendant Charges and 25,000/-
Transportation Expenses
Total... 5,37,468/-
Less : Amount which is already awarded 4,37,000/-
Enhanced amount 1,00,468/-
FIRST APPEAL NO.4898 OF 2018: (MACP No.148 of 2015) Injured case. Aged 55 years. Injured was doing agriculture and vegetable selling Page 46 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Particulars Amount (Rs.) Future loss of income 1,44,276/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 13% disability agreed by pursis, it comes to Rs.1093/- and multiplying it with 12 = Rs.13,116/- per annum and applying 11 multiplier = it will be Rs.1,44,276/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 7,500/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 2,02,064/-
Less : Amount which is already awarded 1,37,500/-
Enhanced amount 64,564/-
FIRST APPEAL NO.4897 OF 2018: (MACP No.149 of 2015) Injured case. Aged 49 years. Injured was doing masonary work.
Page 47 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Particulars Amount (Rs.) Future loss of income 2,98,116/- Rs.7644/- per month and adding 25%
prospective income, it comes to Rs.9555/- out of which deducting the amount of 20% disability agreed by pursis, it comes to Rs.1911/- and multiplying it with 12 = Rs.22,932/- per annum and applying 13 multiplier = it will be Rs.2,98,116/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 1,05,000/-
Pain, shock and suffering 25,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 4,58,404/-
Less : Amount which is already awarded 3,22,700/-
Enhanced amount 1,35,704/-
FIRST APPEAL NO.4896 OF 2018: (MACP No.150 of 2015) Injured case. Aged 54 years. Injured was doing agriculture Page 48 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined and vegetable selling Particulars Amount (Rs.) Future loss of income 1,33,056/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 12% disability agreed by pursis, it comes to Rs.1008/- and multiplying it with 12 = Rs.12,096/- per annum and applying 11 multiplier = it will be Rs.1,33,056/-.
Actual loss of income 30,576/-
Rs.7644 x 4
Medical Expenses 35,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 2,33,632/-
Less : Amount which is already awarded 1,75,000/-
Enhanced amount 58,632/-
FIRST APPEAL NO.4903 OF 2018: (MACP No.151 of 2015) Page 49 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Injured case. Aged 54 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 1,33,056/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 12% disability agreed by pursis, it comes to Rs.1008/- and multiplying it with 12 = Rs.12,096/- per annum and applying 11 multiplier = it will be Rs.1,33,056/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 3,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,86,344/-
Less : Amount which is already awarded 1,25,000/-
Enhanced amount 61,344/-
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FIRST APPEAL NO.4902 OF 2018: (MACP No.152 of 2015) Injured case. Aged 52 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 1,33,056/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 12% disability agreed by pursis, it comes to Rs.1008/- and multiplying it with 12 = Rs.12,096/- per annum and applying 11 multiplier = it will be Rs.1,33,056/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 3,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,86,344/-
Less : Amount which is already awarded 1,25,000/-
Enhanced amount 61,344/-
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FIRST APPEAL NO.4901 OF 2018: (MACP No.165 of 2015) Injured case. Aged 57 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 1,54,332/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 17% disability agreed by pursis, it comes to Rs.1429/- and multiplying it with 12 = Rs.17,148/- per annum and applying 9 multiplier = it will be Rs.1,54,332/-.
Actual loss of income 15,288/-
Rs.7644 x 2
Medical Expenses 1,40,000/-
Pain, shock and suffering 25,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 3,49,620/-
Less : Amount which is already awarded 2,85,000/-
Enhanced amount 64,620/-
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FIRST APPEAL NO.4900 OF 2018: (MACP No.166 of 2015) Injured case. Aged 42 years. Injured was doing agriculture and vegetable selling Particulars Amount (Rs.) Future loss of income 1,12,896/-
Rs.7644/- per month and adding 10% prospective income, it comes to Rs.8408/- out of which deducting the amount of 8% disability agreed by pursis, it comes to Rs.672/- and multiplying it with 12 = Rs.8064/- per annum and applying 14 multiplier = it will be Rs.1,12,896/-.
Actual loss of income 7644/-
Rs.7644 x 1
Medical Expenses 1,000/-
Pain, shock and suffering 20,000/-
Special diet, Attendant Charges and 15,000/-
Transportation Expenses
Total... 1,56,540/-
Less : Amount which is already awarded 1,00,600/-
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Enhanced amount 55,940/-
FATAL CASES:
FIRST APPEAL NO.4778 OF 2018: (MACP No.117 of 2015) Fatal case. Deceased aged 53 years and the occupation was agricultural work and milk selling business.
Particulars Amount (Rs.) Future Loss of Income 8,32,392/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of dependency x 12 = 75,672/- x 11 =Rs.8,32,392/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,93,600/-
(total four dependents) (48,400 x 4)
Total... 10,62,292/-
Less : Amount which is already awarded 6,64,000/-
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Enhanced amount 3,98,292/-
FIRST APPEAL NO.4780 OF 2018: (MACP No.118 of 2015) Fatal case. Deceased aged 56 years and the occupation was agricultural work and masonary work.
Particulars Amount (Rs.) Future Loss of Income 6,81,048/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of dependency x 12 = 75,672/- x 9 =Rs.6,81,048/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,93,600/-
(total four dependents) (48,400 x 4)
Total... 9,10,948/-
Less : Amount which is already awarded 5,56,000/-
Enhanced amount 3,54,948/-
FIRST APPEAL NO.4781 OF 2018: (MACP No.119 of 2015) Page 55 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Fatal case. Deceased aged 52 years and the occupation was agricultural work and milk selling business.
Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,45,200/-
(total three dependents) (48,400 x 3)
Total... 9,21,492/-
Less : Amount which is already awarded 5,98,000/-
Enhanced amount 3,23,492/-
FIRST APPEAL NO.4782 OF 2018: (MACP No.120 of 2015) Page 56 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Fatal case. Deceased aged 53 years and the occupation was agricultural work and masonary work.
Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,45,200/-
(total three dependents) (48,400 x 3)
Total... 9,21,492/-
Less : Amount which is already awarded 5,98,000/-
Enhanced amount 3,23,492/-
FIRST APPEAL NO.4783 OF 2018: (MACP No.121 of 2015) Fatal case. Deceased aged 52 years and the occupation was agricultural work and masonary work.
Page 57 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,45,200/-
(total three dependents) (48,400 x 3)
Total... 9,21,492/-
Less : Amount which is already awarded 5,98,000/-
Enhanced amount 3,23,492/-
FIRST APPEAL NO.4784 OF 2018: (MACP No.122 of 2015) Fatal case. Deceased aged 60 years and the occupation was Masonary work.
Particulars Amount (Rs.) Page 58 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Future Loss of Income 6,81,048/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of dependency x 12 = 75,672/- x 9 =Rs.6,81,048/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 2,90,400/-
(total six dependents) (48,400 x 6)
Total... 10,07,748/-
Less : Amount which is already awarded 5,56,000/-
Enhanced amount 4,51,748/-
FIRST APPEAL NO.4785 OF 2018: (MACP No.123 of 2015) Fatal case. Deceased aged 55 years and the occupation was Agriculture and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 8,32,392/- Page 59 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of dependency x 12 = 75,672/- x 11 =Rs.8,32,392/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 2,42,000/-
(total five dependents) (48,400 x 5)
Total... 11,10,692/-
Less : Amount which is already awarded 6,64,000/-
Enhanced amount 4,46,692/-
FIRST APPEAL NO.4786 OF 2018: (MACP No.124 of 2015) Fatal case. Deceased aged 68 years and the occupation was Agriculture and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 3,78,360/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting Page 60 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of dependency x 12 = 75,672/- x 5 =Rs.3,78,360/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 2,42,000/-
(total five dependents) (48,400 x 5)
Total... 6,56,660/-
Less : Amount which is already awarded 3,40,000/-
Enhanced amount 3,16,660/-
FIRST APPEAL NO.4787 OF 2018: (MACP No.125 of 2015) Fatal case. Deceased aged 55 years and the occupation was Agriculture and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 8,32,392/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/4th for personal expenses i.e. 2102/- it comes to Rs.6306/- per month as loss of Page 61 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined dependency x 12 = 75,672/- x 11 =Rs.8,32,392/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,93,600/-
(total four dependents) (48,400 x 4)
Total... 10,62,292/-
Less : Amount which is already awarded 6,64,000/-
Enhanced amount 3,98,292/-
FIRST APPEAL NO.4788 OF 2018: (MACP No.126 of 2015) Fatal case. Deceased aged 53 years and the occupation was Agriculture work and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Page 62 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Loss of Estate 18,150/-
Funeral Expenses 18,150/-
Loss of consortium 1,45,200/-
(total three dependents) (48,400 x 3)
Total... 9,21,492/-
Less : Amount which is already awarded 5,98,000/-
Enhanced amount 3,23,492/-
FIRST APPEAL NO.4789 OF 2018: (MACP No.127 of 2015) Fatal case. Deceased aged 54 years and the occupation was Agriculture and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Loss of Estate 18,150/-
Page 63 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Funeral Expenses 18,150/- Loss of consortium 1,45,200/- (total three dependents) (48,400 x 3) Total... 9,21,492/- Less : Amount which is already awarded 5,98,000/- Enhanced amount 3,23,492/-
FIRST APPEAL NO.4790 OF 2018: (MACP No.128 of 2015) Fatal case. Deceased aged 54 years and the occupation was Agriculture and Masonary work.
Particulars Amount (Rs.) Future Loss of Income 7,39,992/-
(Rs.7,644/- + 10% prospective income which comes to Rs.764/- = Rs.8408/-. Deducting 1/3rd for personal expenses i.e. 2802/- it comes to Rs.5606/- per month as loss of dependency x 12 = 67,272/- x 11 =Rs.7,39,992/-) Loss of Estate 18,150/-
Funeral Expenses 18,150/- Page 64 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined Loss of consortium 1,45,200/- (total three dependents) (48,400 x 3) Total... 9,21,492/- Less : Amount which is already awarded 5,98,000/- Enhanced amount 3,23,492/-
17. Therefore, I hold that the claimant/s of each claim petition are entitled to get the total amount of compensation as indicated in the above tables
18. For the reasons recorded above, the following order is passed.
18.1 The present appeals are allowed to the aforesaid extent by modifying the impugned judgments and awards passed in respective claim petitions by the learned Tribunal. 18.2 The impugned judgments and awards are modified to the extent that the claimants are entitled to recover the amount of compensation (including the enhanced amount by way of these appeals) with 9% p.a. interest from the date of claim petition till its realization and proportionate cost from the opponent nos.1 and 2 jointly and severally and the opponent nos.1 and 2 shall deposit the entire awarded Page 65 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024 NEUTRAL CITATION C/FA/4778/2018 JUDGMENT DATED: 07/08/2024 undefined amount along with the enhanced amount before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
18.3 On deposit of the said amount, the Tribunal shall disburse the entire awarded amount with cost and interest, if any, to the claimants, by account payee cheque/NEFT/RTGS, after proper verification and after following due procedure. 18.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
18.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) SRILATHA Page 66 of 66 Downloaded on : Fri Aug 16 22:19:41 IST 2024