Madhya Pradesh High Court
Madhya Pradesh Electricity Board vs Ram Mohan Shrivastava And Ors. on 24 June, 1996
Equivalent citations: 1998ACJ651, 1997 A I H C 311, (1997) 1 MPLJ 427, (1997) 2 TAC 387, (1998) 1 ACJ 651
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT
S.K. Dubey and Shambhoo Singh, JJ.
1. Misc. Appeal No. 262 of 1988 is by the owner, Misc. Appeal No. 293 of 1988 is by the insurance company, filed under Section 110-D of the Motor Vehicles Act, 1939 (for short 'the Act'), arise out of the award dated 30.1.1988 passed in M.V. Claim Case No. 56 of 1988 by Ilnd Motor Accidents Claims Tribunal, Sagar.
2. Facts giving rise to the appeals are thus:
Deceased Vimla Shrivastava, wife of respondent No. 1 and mother of the respondent No. 2 was employed as Assistant Engineer in Madhya Pradesh Electricity Board (for short 'the Board') and was getting Rs. 1441/- per month besides bonus of Rs. 749.70 per year. On 22.5.1980 while she was travelling in jeep No. CPK 3567 owned by the Board and insured by the appellant, United India Insurance Co. Ltd. driven by respondent No. 3 met with an accident by its dash with a tree on the Damoh-Sagar road, as a result of which Vimla Shrivastava received severe injuries and was taken to hospital but succumbed to the injuries. The respondent Nos. 1 and 2 as legal representatives of the deceased filed application for compensation under Section 110-A of the Act and claimed Rs. 6,32,000 for the death of the deceased, who at the time of his death was 38 years of age. The deceased could have served 20 years more till the age of superannuation, i.e., 58 years and would have been promoted to the post of Superintending Engineer. Therefore, Rs. 2,32,000/- were claimed towards pay and allowances for first 10 years of service and Rs. 3,17,800 for the second 10 years service, total Rs. 5,49,800/- and Rs. 50,000/- for loss of affection for 30 years and Rs. 32,000/-were claimed as after the death of the mother a mistress (aaya) was required to be kept on monthly pay of Rs. 200/- for 13 years as the respondent No. 2 at the time of the death of her mother was only 4 years of age. The application for compensation was contested by the appellants and the driver, the respondent No. 3 on the ground that the accident did not occur due to any rash and negligent act of the driver, but, due to bursting of tyre as a result of which the vehicle did not remain in control and struck with the tree. The accident was inevitable and could not be averted even after taking reasonable care like a prudent man. On entitlement of compensation it was contended that the respondent No. 1, husband was 48 years of age who was not dependent on the earnings of the deceased as he was a contractor. The respondent No. 2 was also not dependent on the earnings of the deceased as it was the prime duty of the father to maintain her. After the death besides other service benefits a family pension of Rs. 150/- per month is being given till such time as is permitted under the Family Pension Rules. The insurance company also raised the defence that the deceased was under the employment of the Board and was occupant of the jeep, therefore, in terms of the policy the insurance company was not liable to pay any compensation. Alternatively it was pleaded that the liability of the insurance company is limited in accordance with Section 95 of the Act.
3. The Tribunal after appreciation of evidence on record held that the tyre did not burst but punctured, therefore, the driver could have controlled the vehicle as the air from wheel starts leaking out slowly. The driver was negligent as the driver of a vehicle while driving can very well judge the pressure of the air in the wheel on the road. Therefore, respondent No. 3 could have stopped the vehicle, which he did not do. The Tribunal on the basis of loss of yearly income of Rs. 18,041.70 for 22 years calculated the compensation of Rs. 3,95,917/- by giving a deduction of Rs. 1,32,000/- towards the personal living expenses of the deceased at the rate of Rs. 500/- per month and awarded compensation of Rs. 2,64,910/-with interest at the rate of 12 per cent per annum from 24.11.1980.
4. Mr. M.L. Jaiswal, learned Counsel for the Board, did not seriously challenge the finding of rash and negligent act of the driver. However, learned Counsel contended that the respondents are not entitled to claim compensation as the husband was not dependent on the earnings of his wife. He as contractor was independently earning, besides a fact is admitted that he has remarried. Respondent No. 2 is not entitled for compensation as in our Indian society it is the prime duty of the father to maintain the child. Relying on the decisions of Supreme Court in the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC) and in the case of General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas 1994 ACJ 1 (SC), it was submitted that while determining the compensation the starting point in any estimate of the amount is the amount of dependency which is annual value of the material benefit provided for the dependants out of the earnings on the date of death. Thereafter the multiplier system is to be applied for determining the compensation. The claimants have failed to discharge their burden to establish the extent of their loss. The compensation so awarded is highly excessive, by adopting the unscientific method. Deduction of family pension of Rs. 150/- was not given. The significant factor that the Board gave a compassionate appointment to respondent No. 1 as Upper Division Clerk has not been taken into consideration. In any case if this Court is of the view that the minor daughter was entitled to compensation she was 4 years of age at the time of death of her mother, therefore, the compensation could have been awarded till the date of her majority, i.e., 18 years by calculating the monthly dependency between Rs. 200 and Rs. 250/- per month.
5. Mr. H.B. Agrawal, learned Counsel for the appellant insurance company has submitted that as the deceased was an employee of the Board and was travelling as a passenger in the jeep in terms of the Sub-clause (a) of Clause (i) of Sub-section (2) of the policy the insurance company is not liable as the death of the deceased arose out of and in the course of employment of the insured. In any case as the deceased was occupant and was passenger in the jeep car the liability will be statutory and limited to the extent of Rs. 15,000/-in terms of Section 95 (2)(b). Even if it is a case of 3rd party the maximum statutory liability would be Rs. 50,000/-. Reliance was placed on the decision of the Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC) and United India Fire & Genl. Ins. Co. Ltd. v. M.S. Durairaj 1982 ACJ 261 (Madras).
6. Mr. V.P. Verma, learned Counsel for the respondent Nos. 1 and 2, supporting the award submitted that under Section 110-A of the Act, the legal representatives of the deceased can maintain an application for compensation. In the present times if a family cannot be run by the earnings of the husband only, to live reasonably and to meet necessities of the family, both husband and wife earn. The deceased was an Assistant Engineer who was financially contributing to the family, therefore, the Tribunal rightly awarded the compensation. The husband is entitled being the legal representative as there is no evidence to the fact that after remarriage the second wife of the husband is earning, reliance was placed on a Division Bench decision of this Court in the case of Madhya Pradesh State Road Transport Corporation v. Sudhakar 1967 ACJ 90 (MP), wherein the wife aged 23 years died in a motor accident was employed as physical instructress in Vikram University, Indore and was drawing Rs. 190/- per month inclusive of D.A. in grade 150-10-260/-. The husband after about 11 months, re-married, a compensation of Rs. 50,000/- was awarded holding that the deceased could have reasonably spent half of the amount for her child and husband out of her earnings till the age of 58 years. The basis of assessing the damages payable to the husband for the death of his wife would remain the same as the method applied in assessing the damages. Therefore, husband cannot be deprived of compensation, besides, the deceased left four years daughter, who is certainly entitled to compensation till the age of her marriage. A statement at the Bar was made that till the date the respondent No. 2 has not been married.
7. The contention that the husband as legal representative of the deceased cannot maintain the application for compensation as he was not dependent on the earnings of the deceased and that the respondent No. 2, the daughter is to be maintained by the father, the respondent No. 1, therefore, respondent No. 2 also is not entitled for compensation, cannot be accepted. Section 110-A of the Act lays down that an application for compensation arising out of an accident of the nature specified in Sub-section (i) of Section 110 may be made by (a) in case of the injury, by the person who has sustained the injury (aa) in case of damage to the property, by the owner of the property or (b) where in case of death, by all or any of the legal representatives of the deceased. In case of Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), the Supreme Court considered the question and after referring Section 110-A to 110-F of the Act and cleavage of the opinion amongst the High Courts in India as regard to the maintainability of the action under Section 110-A of the Act by persons other than wife, husband, parents and child of the person who dies on account of motor accident has ruled that the maintainability of the application by the persons to whom the compensation payable under Section 110-A (1) of the Act cannot be restricted to the relatives of the deceased named in Section 1A of the Fatal Accidents Act, 1855 to whom compensation is payable under Section 2 of that Act. Section 110-A of the Act is wide enough and every legal representative who suffers on account of the death of a person due to motor vehicle accident should have remedy for realisation of compensation and that is provided in Section 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of Torts that every injury must have a remedy. It is for Motor Accidents Claims Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act to specify the person or persons to whom the compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B amongst the legal representatives for whose benefit an application may be filed under Section 110-A have to be done in accordance with well-known principles of law. It is to be remembered that in an Indian family brothers, sisters and brothers children and sometimes foster children live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which has been substantially modified by the provisions contained in the Motor Vehicles Act in relation to cases arising out of motor vehicles accidents.
8. It is not disputed that the husband and the daughter are the legal representatives of the deceased, have suffered on account of death of Vimla Shrivastava. The deceased was one of the earning members of the family. It is impossible to assume that the deceased was not contributing by her earnings to the common pool which was utilized for the lodging and boarding for the family consisted of the husband, wife the deceased and daughter. Therefore, in view of the law laid down by the Supreme Court in the case of Gujarat State Road Trans. Corporation 1987 ACJ 561 (SC), we hold that respondent Nos. 1 and 2 as legal representatives of the deceased are entitled to claim compensation.
9. Now the question remains of determining the compensation. The husband may not be dependent on the wife's income, still the basis of assessing the damages payable to the husband for the death of his wife and also to the daughter would be similar as the method applied in assessing the damages. In a recent decision in Susamma Thomas's case 1994 ACJ 1 (SC), the Supreme Court observed that the principles of assessing damages as were adverted by Lord Diplock in Mallett v. Mc Monagle 1969 ACJ 312 (HL England), relied also in Madhya Pradesh State Road Trans. Corporation v. Sudhakar 1977 ACJ 290 (SC), that is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual 'dependency' by a number of 'years purchase', that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand. The Supreme Court further observed that it is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. Therefore, any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. It must be borne in mind that the multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards.
10. In the case in hand the deceased was aged 38 years and was earning Rs. 1,441/- per month exclusive of bonus of Rs. 749.70 at the time of her death. She was in a settled job taking into account the future prospects of advancement in career which are also to be counted in terms of money, to augment the multiplicand and taking into account all the contingencies, we think higher estimate of the monthly income of the deceased as Rs. 1,800/- the gross income, from this personal living expenses are to be deducted which further, depends on the various factors such as whether the style of living was Spartan or Bohemian. There is no evidence to that effect. Considering the fact that deceased was an Assistant Engineer who has to live in good style particularly her husband was having good income of contractorship, it will not be out of place to deduct 50 per cent of her personal living expenses and therefore, Rs. 900/- should be considered financial assistance or contribution to the family pool by way of monthly dependency, yearly Rs. 10,800/-. As the respondent No. 2 was aged 4 years at the time of death of her mother, the multiplier of 14 would be appropriate, the 'just' compensation would arrive at Rs. 1,51,200/- to which the claimants/respondents would be entitled.
11. The contention that family pension was awarded and that the compensatory appointment was given to the husband, therefore, at least a deduction of Rs. 150 per month should be given, in our view, cannot be accepted in the facts of the case. For seeking deduction from the compensation, appellant Board has not discharged the burden by placing proper material about the nature and incident of such pension, whether it was contributory or non-contributory under any statutory rules, if it is contributory, no deduction certainly be made, if it is non-contributory, i.e., paid by the employer of his own a deduction can be made. Therefore, in the absence of proper material we are not inclined to give deduction of the family pension. See the decision of full Bench of this Court in case of Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP) and a decision of Division Bench of this Court in the case of State of Madhya Pradesh v. Ashadevi 1988 ACJ 846 (MP). Appellant Board has also not placed any material to demonstrate that respondent No. 1 would not be entitled for compensation as compassionate appointment has been given to him, which must have been given under Rules, but, that will not debar from claiming compensation for the death of his wife under the provisions of the Act, to which he and his daughter are legally entitled. Therefore, we hold that the respondent would be entitled to compensation of Rs. 1,51,200/- with interest at the rate of 12 per cent per annum from the date of application, i.e., 24.11.1980. However, we are not inclined to grant interest for the whole period of litigation as the application for compensation was filed in the year 1980, award was passed on 30.1.1988 against which the appeal preferred in the year 1988 came up for final hearing in the year 1996. For the delay so caused in litigation the appellants cannot be blamed, therefore, should not be burdened with interest for a period of 16 years, on the principle that no one should suffer for the act of the court. Hence, it would be just and equitable and also fair to direct the appellant Board to pay the interest at the rate of 12 per cent per annum for a period of 8 years only, to say so we place reliance on a Division Bench decision of this Court in the case of Oriental Fire & Genl. Ins. Co, Ltd. v. Ram Singh 1995 ACJ 26 (MP).
12. Coming to the appeal of the insurance company, the policy is on record. It is not in dispute that the liability is in terms of the conditions contained in the policy. A bare look at the policy shows that no extra premium has been paid by the Board to cover unlimited risk other than stated in the policy. Section 2 of the policy deals with liability to third parties. Clause 1 (a) of which relates to covering of the risk in relation to death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. Therefore, the liability of the insurance company would be in terms of Section 95, as there was no contract to the contrary covering the risk of the passenger or occupant of the jeep car except covering the risk of the driver specified in the policy. In view of the law laid down by the Supreme Court in the case of Pushpabai 1977 ACJ 343 (SC) and the decisions of this Court in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Pramila 1989 ACJ 809 (MP), Shivlal v. Rukmabai 1987 ACJ 341 (MP), a decision of Madras High Court in United India Fire & Genl. Ins. Co. Ltd, v. M.S. Durairaj 1982 ACJ 251 (Madras) and a Division Bench decision of Calcutta High Court in New India Assurance Co. Ltd. v. Basmati Devi 1988 ACJ 34 (Calcutta) and a decision of the Delhi High Court in Krishna Gupta v. Madan Lal 1996 ACJ 165 (Delhi), wherein after referring to decisions of the Supreme Court and of various High Courts, the learned Judge took the view that as no extra premium was paid for covering the risk of the gratuitous passenger in the car, therefore, the insurer is not liable to pay any compensation. In the case in hand, also as is evident from the policy, no extra premium was paid to cover the risk of passengers travelling in the jeep car, nor the risk was covered of a person travelling in pursuance of contract of employment with the owner, jeep was registered as a private car for private purpose or use and insured for third party risk, the insurance company would not be liable to indemnify the owner and it is only the owner, i.e., the Board and the driver who would be responsible for payment of compensation.
13. In the result, the appeal filed by the insurance company is allowed and the award passed holding the insurance company liable to pay compensation is set aside. Appeal filed by the Board is partly allowed. Award passed by the Tribunal for Rs. 2,64,910/- is reduced to Rs. 1,51,200/-with interest as directed in para 11 of the award, which shall be deposited by the Board within two months failing which the interest shall be payable at the rate of 15 per cent per annum for the period of eight years. On deposit, the Tribunal shall disburse the amount of Rs. 90,000/- with its proportionate interest to the respondent No. 2, the daughter Ruchi and the balance amount of Rs. 61,200/- with its interest shall be disbursed to the respondent No. 1. Tribunal shall disburse the amount keeping in consideration the guidelines laid down by the Apex Court in Susamma Thomas 1994 ACJ 1 (SC). The respondent Nos. 1 and 2 shall also get costs of this appeal. Counsel's fee Rs. 1,000/- if pre-certified.