Punjab-Haryana High Court
Surjit Kaur And Ors. vs Harbhajan Singh And Ors. on 15 May, 1995
Equivalent citations: II(1995)ACC561, 1996ACJ457, (1995)111PLR211
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Claimant-appellants have filed this appeal against the award dated January 31, 1990, whereby they have been awarded Rs. 1,50,000/- as compensation for the accidental death of Balwant Singh son of appellants Surjit Kaur and Sarup Singh, husband of Manjit Kaur and father of Tajinder Singh minor.
2. Briefly stated, the facts of the case are that on May 18,1987, at about 7 P.M. deceased Balwant Singh was going on a scooter from Amargarh towards village Bagarain. At that time Harbhajan Singh was driving Oil Tanker/Truck No. PBP 6767 rashly and negligently. Hardeep Singh was sitting on the pillion of the scooter. Harbhajan Singh dashed against the scooter of Balwant Singh, who sustained injuries and breathed his last on the spot. Harbhajan Singh respondent was driver of the said offending vehicle and respondent No. 2 was its owner and it was insured with respondent No. 3. Balwant Singh was aged 20 years and was working as Veterinary Pharamacist at Civil Veterinary Hospital Bagarain. At the time of accident his total emoluments were Rs. 1313.50 per month. The claimants are his dependents. They claimed Rs. 5 lacs, with costs and interest at the rate of 12 per cent per annum from the respondents.
3. Respondents 1 and 2 submitted their joint written statement and denied their liability for the payment of compensation. They also denied that the accident was caused by the Oil Tanker/Truck which was driven by respondent No. 1 at the time of accident. In the alternative, it was pleaded that if the claimants were entitled to any compensation since the Oil Tanker Truck was insured with respondent No. 3, the compensation could be recovered from respondent No. 3 only. Respondent No. 3 filed its separate written statement and inter alia pleaded that after the accident, no intimation to that effect was given to the company by respondents 1 and 2. Therefore, the Insurance Company was not liable. It was also objected that at the time of accident if respondent No. 1 was holding a valid driving licence, then only the Insurance Company's liability could be considered. Lastly, it was averred that the Insurance Company's liability was limited under section 95(2) of the Motor Vehicles Act. Hence the Insurance Company was liable to that extent only.
4. After recording the evidence, the Claims Tribunal came to the conclusion that deceased Balwant Singh was drawing Rs. 1313.50 while working as Veterinary Pharmacist. Claimants dependency was assessed at Rs. 780/- per month and applying a multiplier of 16, the compensation was calculated at Rs. 1,49,760/- which was rounded off to Rs. 1,50,000/-. This compensation was awarded and apportioned amongst the claimants in the ratio of 5 (widow), 5 (minor son), 3 (mother) and 2 (father).
Appellant's learned counsel, relying on Kerala State Road Transport Corporation v. Susamma Thomas and Ors., (1994-2) 107 P.L.R. 1 (S.C.), contended that the Apex Court in that case took into consideration the future prospects of promotion of the deceased, aged 38 years, who was drawing Rs. 1032/- per month as salary. The apex Court determined the earning of the deceased at Rs. 2,000/- per month. The dependency of the claimants was determined at Rs. 1400/- per month and a multiplier of 12 was adopted. He also relied on Smt. Kiran Wati widow v. Hari Singh, (1991-2)100 P.L.R. 555; (wherein deceased was aged 29/30 years; the claimants were widow and two minors; multiplier of 25 was adopted); Master Ullasa v. Shri Rajinder Singh, (1993-1) 101 P.L.R. 524; wherein deceased, aged 30 years, was earning Rs. 1925/-; the dependents were widow and minor son; dependency was assessed at Rs. 1,300/- and a multiplier of 20 was adopted) and Sukhdarshan Singh v. Ranjit Kaur, (1992-2) 102 P.L.R. 112 (deceased was aged 29 years; multiplier of 20 was adopted). Hence he argued that in this case, the claims Tribunal has wrongly assessed the dependancy at Rs. 780/- per month. The deceased was working as Veterinary Pharamcist and would have got promotion also. Taking that fact into consideration, his monthly income should have been assessed at Rs. 2,000/-, claimants' dependency should have been determined at Rs. 1,400/- per month and applying a multiplier of 16, as the Clams Tribunal has done, compensation of Rs. 2,68,800/- should have been awarded to the claimants.
5. Respondents learned counsel supported the award with industry and precision and contended that the Claims Tribunal has rightly awarded compensation. In view of Susamma Thomas's case (supra) multiplier of 12 only should have been adopted. Further relying on Piara Singh v. Kaushalya Devi Gera, (1986-1) 89 P.L.R. 578, Pt. Ram Parkash and Ors. v. Smt. Kanta Suri, (1987-2) 92 P.L.R. 169, National Insurance Co. Ltd. v. Jugal Kishore, (1988-2) 94 P.L.R. 128 (S.C.), The Jullundur Transport Coop. Society v. Mrs. Rajwali, (1989-1) 95 P.L.R. 259 and Sukhdarshan Singh's case (supra), it is submitted that the liability of respondent No. 3 is limited under Section 95(2) of the Motor Vehicles Act to Rs. 1,50,000/- only. Even if the amount of compensation is enhanced, the liability of respondent No. 3 is only upto 1,50,000/-.
6. Appellants counsel strongly opposed this prayer and contended that no such plea was raised before the Claims Tribunal and no evidence had been adduced to prove such a contention.
7. The objection of appellant's counsel is devoid of any substance. Respondent No. 3 has taken such a plea specifically in para 4 of the additional objections raised in its written statement. Cover note of the insurance policy was produced before the Claims Tribunal, which is exhibit A-93. In this cover note in the column of 'Limits of liability' it is mentioned "such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1989". Same endorsement was made in Piara Singh and Pt. Ram Parkash's case (supra) and the Court held that under Section 95 of the Act the liability of the Insurance Company is limited to Rs. 1,50,000/-. In Mrs. Rajwali's case (supra) it is held that parties can contract out of limited liability by paying higher premium. Its burden is on the owner. If this is not proved liability of insurance Company is limited. In Jugal Kishore's case (supra) the Apex Court has also held that under Section 95(2) liability of the Insurance Company is limited. Hence, I find that liability of respondent No. 3 is limited under Section 95(2) of the Motor Vehicles Act and it is liable to pay only Rs. 1,50,000/- to the claimants.
8. So, far as the amount of compensation is concerned, the deceased was earning Rs. 1313.50 per month at the time of accident. He was Veterinary Pharmacist and could have got promotions as well. The claimants are his widow, minor son and old parents. At the time of accident, the age of the deceased was 29 years. Relying on Susamma Thomas's case (supra) and considering the age of the deceased, the age-groups of the claimants, the monthly income of the deceased coupled with his future prospects, according to me his monthly income could be assessed at Rs. 2,000/- per month and dependency of the claimants could be assessed at Rs. 1400/-per month instead of Rs. 780/- per month, as the Claims Tribunal has done. Applying a multiplier of 12, I find that the claimants are entitled to get compensation of Rs. 2,01,600/- from the respondents jointly and severally. The amount of compensation is thus enhanced. The apportionment of amount of compensation to be paid to the claimants will be the same as was determined by the Claims Tribunal. Out of this amount of compensation, respondent No. 3 is liable to pay only Rs. 1,50,000/-. Respondents 1 and 2 are further liable to pay Rs. 51,600/- to the claimants.
9. With the aforesaid modification in the amount of compensation, the appeal is allowed. The parties are directed to bear their own costs.