Madras High Court
National Insurance Company Limited vs P.Suresh ... 1St on 19 September, 2018
Author: S.Vimala
Bench: S.Vimala
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2018
CORAM
THE HON'BLE DR. JUSTICE S.VIMALA
C.M.A.Nos.1831 and 1832 of 2016
& Cross Objection Nos.77 & 78 of 2016
& CMP Nos.13438 & 13439 of 2016
National Insurance Company Limited,
D.D.L.R.N.Colony,
Saradha College Main Road,
Salem. ... Appellant in both CMAs
/R-1 in both the Cross Objection
- Vs -
1. P.Suresh ... 1st Respondent in both CMAs/
Cross Obj. in both cases/
Petitioner (claimant)
2. M.Pazhaniswamy ... 2nd respondent in both the CMAs/
R-2 in Cross Objection
(Erstwhile owner of the vehicle)
3. D.Paraman ... 3rd respondent in both the cases /
R-3 in both the Cross Objection
(Subsequent owner of the vehicle
from 05.02.2007)
4. The Government of Tamil Nadu,
Rep. by the Chief Secretary to Govt.
Secretariat, Chennai 600 009. .. R-4 in both the CMAs
(R-4, suo-motu impleaded by Court
vide order dated 22.12.2017)
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Prayer in C.M.A.No.1831 of 2016: Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicles Act, 1988, against the Judgment and Decree dated
30.10.2015 made in M.A.C.T.O.P.No.259 of 2010 on the file of the Motor Accident
Claims Tribunal, Special District Court, Salem.
Prayer in C.M.A.No.1832 of 2016: Civil Miscellaneous Appeal is filed under
Section 173 of Motor Vehicles Act, 1988, against the Judgment and Decree dated
30.10.2015 made in M.A.C.T.O.P.No.260 of 2010 on the file of the Motor Accident
Claims Tribunal, Special District Court, Salem.
Prayer in Cross Objection Nos.77 of 2016: Cross Objection filed under Order 41
Rule 22 of C.P.C., against the Judgment and Decree dated 30.10.2015 made in
M.C.O.P.No.259 of 2010 on the file of the Motor Accident Claims Tribunal, Special
District Judge, Salem, seeking enhancement of compensation.
Prayer in Cross Objection Nos.78 of 2016: Cross Objection filed under Order 41
Rule 22 of C.P.C., against the Judgment and Decree dated 30.10.2015 made in
M.C.O.P.No.260 of 2010 on the file of the Motor Accident Claims Tribunal, Special
District Judge, Salem, seeking enhancement of compensation.
For Appellant in both CMAs
& For R-1 in both Cross Obj. : M/s.N.B.Surekha
For R-1 in both CMAs &
For Cross Objectors in
Cross Objections : Mr.C.Richard Suresh Kumar
for M/s.E.Balasubramani
For R-2 & R-3 in both CMAs : No Appearance
For R-4 in both CMAs : Mrs. Narmadha Sampath, AAG
assisted by
Mrs. Thangavadhana Balakrishnan
Reserved On Pronounced On
06.07.2018 19.09.2018
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COMMON JUDGMENT
When a victim of accident loses his pregnant wife, the fetus and his leg as well, all in the same accident, can he be told that he is not entitled to compensation, all because, the offending tort-feasor could not be identified by the State machinery, this is the challenging question raised by the victim of the accident.
2. Contending that there is no foundational fact establishing the liability on the part of the Insurance Company and thus, the Insurance Company is not liable, these two appeals have been filed by the Insurance Company.
3. M.C.O.P.No.260 of 2010 has been filed by the petitioner, P.Suresh, claiming compensation of Rs.5,00,000/-, in respect of death of his wife in the accident that took place on 03.09.2008. The Tribunal, on consideration of the oral and documentary evidence, passed an award for a sum of Rs.6,02,680/-. Challenging the same, C.M.A.No.1832 of 2016 has been filed by the insurance company.
4. M.C.O.P.No.259 of 2010 has been filed by the same petitioner, claiming compensation of Rs.10,00,000/-, in respect of the amputation suffered by him. Challenging the award granted at Rs.7,07,510/-, C.M.A.No.1831 of 2016 has been http://www.judis.nic.in 4 filed by the insurance company.
5. Cross objection Nos.77 & 78 of 2016 have been filed by the victim claiming enhancement of compensation.
6. A perusal of the claim petition reveals that on 03.09.2008, at about 10.00 p.m., the husband/the claimant took his pregnant wife in a motorcycle bearing Reg.No.TN52Z0104, along with one Vasanthi for the help of his wife, as pillion riders. When the claimant was proceeding near Karuppanampatti, the lorry, coming in the direction from Omalur to Mettur, in a rash and negligent manner, hit against the motor cycle. The lorry, after hitting the two wheeler driven by the claimant, did not stop and went away from the scene of occurrence. The claimant's wife, Maheshwari, was taken to the hospital with serious grievous injuries and was declared dead at about 02.00 hrs., on the early morning of 04.09.2008. A case was registered by the Omalur Police against the driver of the lorry in Cr.No.1064 of 2008.
7. The Insurance Company disputed its liability in M.C.O.P.No.260 of 2010 on the ground that the claimant/husband is guilty of triple driving which act is prohibited under the Motor Vehicles Act and therefore, the tortfeasor cannot claim compensation in respect of his own negligence. http://www.judis.nic.in 5
8. It is the further contention of the Insurance Company that FIR has been registered only against the lorry driver and, therefore, the owner and the insurer of the lorry alone is responsible for the accident and the insurer of the two wheeler cannot be made liable for compensation and the petition should be dismissed for non-joinder of necessary parties.
9. The Tribunal, on consideration of the materials available on record, rendered a finding that the accident occurred on account of the negligence of both the drivers, namely, the claimant as well as the driver of the lorry and apportioned the liability in the ratio of 50:50. Contending that the direction for apportionment was not taken care of, while arriving at the total amount of compensation by the Tribunal itself and therefore, it should be set aside.
10. A perusal of the order passed by the Tribunal reveals that the Tribunal has rendered a finding that the driver of the two wheeler (claimant) as well as the driver of the lorry are equally responsible for the accident. Though such a finding has been arrived at by the Tribunal, however, the liability has not been apportioned and the compensation to which each person is liable to pay has not been correctly indicated in the order, is the grievance of the appellant/Insurance Company.
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11. The details of calculation in both the cases are as under: M.C.O.P.No.260 of 2010
The Tribunal, based on the post-mortem report, fixed the age of the deceased at 23 years. The Tribunal, fixing the monthly income of the deceased at Rs.3,300/- and after deducting 1/3rd towards the personal expenses of the deceased, adopting multiplier of 18, quantified the loss of dependency at Rs.4,75,200/-. While deducting 10% towards contributory negligence of the claimant, the loss of dependency has been fixed at Rs.4,27,680/-. Compensation has also been awarded under other conventional heads, the details of which are tabulated hereunder :-
Head Amount
Loss of dependency (Rs.3300 – 1/3 x Rs.4,27,680/-
2/3 x 18 – 10%)
Cremation expenses Rs.25,000/-
Loss of Consortium Rs.50,000/-
Loss of Fetus Rs.1,00,000/-
Total Rs.6,02,680/-
An analysis of the compensation awarded reveals that 10% of the amount has been deducted towards contributory negligence on the part of the claimant. In such circumstances, the contention of the Insurance Company is that the finding of the Tribunal regarding negligence at 50:50 has not been carried into operation, while calculating the quantum of compensation. http://www.judis.nic.in 7 M.C.O.P.No.259 of 2010 Insofar the quantum of compensation awarded to the injured claimant is concerned, it is seen that permanent disablement has been taken at 95% and taking the age of the claimant at 25 years, while fixing the monthly income of the claimant at Rs.3,300/-, adopting the multiplier of 18%, loss of income has been calculated at Rs.6,77,160/- (Rs.3,300 x 12 x 18 x 95%). The details of the compensation awarded under the various heads are shown below :-
Head Amount
Loss of Income Rs.6,77,160/-
Cost of Attendant Rs.10,000/-
X-ray Rs.350/-
Pain and Sufferings Rs.20,000/-
Total Rs.7,07,510/-
Triple riding – whether would import negligence
12. The contention of the appellant is that the claimant is not entitled to any compensation either as an injured or as the legal representative of the deceased, as he himself is guilty of triple driving and he was solely responsible for the accident and he cannot maintain the petition for compensation.
13. The core question that arises for the consideration of this Court is “whether the negligence alleged on the part of the claimant is true, and if not, to what relief the claimant is entitled to and from whom.” http://www.judis.nic.in 8
14. The contention of the Insurance Company is that the claimant on his account of own fault cannot ask for any compensation from the Insurance Company.
15. The contention of the claimant is that it is both, i.e. the State as well as the Insurance Company are both liable to compensate the claimant and the claimant is not at fault.
15.1. It was pointed out by the learned counsel appearing for the claimant that the Police machinery, whose duty is to investigate and find out the tortfeasor, was not able to trace the lorry and therefore, the case is lying as undetected. It is contended that for the omission in the discharge of the statutory duty and the omission to provide the basic and fundamental facility to the claimant, the State should be made responsible for the claim made by the claimant.
16. In numerous cases, to do justice to the victims, the Hon'ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example, Kewal Pati Vs. State of U.P. (1995) 3 SCC 600 (death of http://www.judis.nic.in 9 prisoner by co-prisoner), Supreme Court Legal Aid Committee Vs. State of Bihar, (1991) 3 SCC 482 (failure to provide timely medical aid by jail authorities, Chairman, Rly. Board Vs. Chandrima Das, (2000) 2 SCC 465 (rape of Bangladeshi national by Railway staff), Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 746 (Custodial death), Khatri (I) Vs. State of Bihar (1981) 1 SCC 623 (prisoners' blinding by jail staff), Union Carbide Corporation Vs. Union of India, (1989) 1 SCC 674 (gas leak victims).
16.1. In the case of State of Himachala Pradesh vs. Ram Pal, reported in 2015 11 SCC 584, compensation ordered to be paid to the victims of accident was directed to be paid by the State, if in case the accused failed to pay the same.
16.2. In such circumstances, this Court impleaded the 4th respondent State for the purpose of ascertaining the compensation that would be payable by the State to the claimant, when the investigating machinery, functioning under the Government, was not able to trace out the offending vehicle, viz., the lorry.
17. The contention of the Government is that the Insurance Company is liable, having regard to the introduction of the provisions relating to no fault liability.
Who was negligent?:-
18. It is the contention of the learned counsel appearing for the claimant that triple driving though prohibited under the Motor Vehicles Act, would not http://www.judis.nic.in 10 lead to automatic conclusion that the driver concerned was negligent and it was the cause for accident; the legislature prohibits triple driving only in order to avoid accident taking place if negligence creeps in while driving; triple driving may lead to accident if sufficient care is not taken; if sufficient care is taken while driving, then, merely because it is a triple driving it cannot lead to accident and therefore, no negligence can be attributed to the driver of the vehicle, i.e. the claimant.
19. In the case of Bimla Devi vs. Surjeet Singh and other, the Hon'ble High Court of Punjab & Haryana, has held as under:
“13. In case The New India Assurance Co. Ltd., vs. T.K.Duraiswamy (Supra), there was triple riding on the motorcycle. The accident has taken place between a truck and the motorcycle, resulting injuries to the pillion rider. It was contended before the Hon'ble Madras High Court the motorcyclist lost control due to triple riding and the same was violative of the traffic rules and provision of the Act, but no evidence was led that the accident was caused due to triple riding. The Insurance Company was held liable for payment of amount of compensation.
14. In case Smt.D.Vasheeda vs. Smt.V.Babakka (supra), the Hon'ble Andhra Pradesh High Court has laid down as under:-
“7. ..... The learned Tribunal attributed negligence to the rider of the motorcycle, on the sole ground of triple riding on the motorcycle. There is no evidence adduced by the insurer that the http://www.judis.nic.in 11 accident occurred because of the triple riding of the motorcyle. In the absence of any evidence, it cannot be assumed or presumed that the accident resulted because of the triple riding of the motorcycle. The evidence of P.W.2 is crystal clear that the lorry came in high speed and dashed the motorcycle and as a result, he and other two persons travelling on the motorcycle fell on road and sustained injuries. The finding recorded by the learned Tribunal that there was contributory negligence on the part of the rider of the motorcycle is not based on any evidence. Hence, I find that the accident occurred due to negligent driving of the driver of the lorry bearing No.APA 5805.”
15. In case Kumari K.Pushpa Latha vs. E.Murali Manohar Rao (supra), after taking the note of Section 128(1) of the Act, the Hon'ble Andhra Pradesh High Court has laid down as under:
“4. In this case, except there being evidence of triple riding of motor cycle bearing No.AP 11B 5316, there is no further evidence to show that motor cycle rider was riding the motor cycle in a hap-hazard manner or in a zigzag fashion in order to contribute negligence for this accident. The fact that Maruti Car came from behind the motor cycle and dashed the motor cycle discloses that Maruti Car was being driven at higher speed than the motor cycle and dashed the motor cycle from back side when the motor cycle was going in front of the car was visible to the car driver. When the motor cycle was going in front of the car and there was no clearance of the road for the car to pass through the road overtaking the motorcycle, driver of the car should have slowed down the car and as and when there was clearance, he http://www.judis.nic.in 12 should have overtaken the motor cycle. Instead, the car driver has preferred to hit the motor cycle going in front of it. This undoubtedly shows that the car driver was at fault and the accident is the result of rash and negligent driving of the car driver solely and the motor cycle rider did not contribute any negligence for this accident. Therefore, in my opinion, the lower Tribunal came to an erroneous conclusion that the motor cycle also contributed negligence for this accident on the mere fact that there was triple riding on the motor cycle. The lower Tribunal erred in disallowing 50% of the compensation payable to both the appellants.”
16. In case Karnail Singh vs. Balwinder Singh (supra) also three persons were travelling on the motorcycle which was hit by Maruti car coming from behind, wherein this Court has laid down as under:-
“2. It is a case of three persons on a motorcycle having been hit by a maruti car coming from behind. The Tribunal while assessing the compensation found that the driver of the maruti car was guilty of negligent driving and all the same found contributory negligence for the three persons, who were coming on a motorcycle. This finding is clearly erroneous. The Court was not determining an imposition of a fine or offence under the Motor Vehicles Act. The three persons travelling on a motorcycle may have been guilty of traffic offence but there is no reason for the Court to make any inference regarding negligence as contributory by the only fact that three persons were going on a motorcycle. This can be explained also by a different experience of a motorcyclist not having a driving licence at all but still coming by an injury in collision with http://www.judis.nic.in 13 another vehicle. The Courts have held in such a situation that the person, who did not have a driving licence shall not be taken as allowing for common inference of negligence. It is another way of saying that yet another vehicle will not be permitted to take advantage of a traffic offence committed by another person. If the evidence was brought before the Court that the driver of the maruti car was responsible for the accident, the Court could not have without any explanation from the driver of the maruti car itself that the accident took place by any negligent conduct of the motorcyclist also. A finding of contributory negligence is not a matter of conjectural inference in the manner done by the Tribunal but it shall be on the basis of specific evidence. The partial abatement of the respective claims to the extent of 50% was, therefore, erroneous and I set aside the same.” The decision cited above would go to show that the finding regarding contributory negligence cannot be based on conjectures. It should be based on evidence. There is no evidence to show that triple riding was the cause for accident. Thus, it is clear that there cannot be any finding regarding negligence based on assumption or presumption or conjectural inference just because there was triple riding. There must be a further proof to show that the person, who was actually involved in triple driving, was responsible for the accident.
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20. In order to find out the part played by the claimant, especially, in the absence of lorry driver/owner not being brought on record, this Court has chosen to examine the claimant as the evidence already recorded was insufficient and with lack of clarity.
21. Evidence of the injured claimant has been recorded by the Tribunal. Recording of evidence requires some amount of application of mind and recording of evidence without ascertaining the cause of accident will not be of any use. The mechanical reproduction of the allegation that the driver was negligent/not negligent in the driving is not sufficient. In what way the person concerned negligent has to be elicited.
22. During examination, the claimant would state that he is living in a remote village, in which: (a) there is no public transport facility after 10.00 pm; (b) there is no ambulance facility in case of emergency; (c) there was road repairing work being undertaken at that point of time; (d) there was not even a primary health centre providing basic health services; (e) the expectant mother, i.e. child in womb was his wife with unbearable pain wanting to go to hospital at that point of time, in the midnight; (f) anticipating assistance of a co-woman in case of delivery, the claimant has taken another woman in the same vehicle. http://www.judis.nic.in 15
23. Under such circumstances, the Court has to consider, if at all a husband, who has to carry his wife for delivery, could have driven the vehicle rashly and negligently unmindful of the safety and security of the pregnant wife and the expected child. It could not have been and the evidence of the claimant also proves that he was not negligent. Under such circumstances, the contention of the claimant that he was driving very slowly and it is only the driver of the lorry who had driven rashly and negligently has to be accepted. Needless to point out that the tracing out of the culprit is the responsibility of the Government through the Enforcement Machinery, namely, the Police. If the Police is not able to find out the culprit, then it is the duty of the State to compensate the claimant, especially when no health care services is made available to the claimant and not even ambulance services are made available.
24. For a man who suffered amputation up to hip level and who suffered loss of expectant child and loss of his wife, for no fault of him, no law could say that he is not entitled to compensation. When the loss caused to the claimant is unbearable and irreparable, it is the duty of the State to compensate him, especially, when there is omission to ensure right to life. So far as this case is concerned, apart from the evidence of the claimant/injured, there is no other evidence indicating that there could be any negligence on the part of the claimant/injured also. In the absence of any evidence showing that triple riding http://www.judis.nic.in 16 was the cause for accident, then, it cannot be contented that triple riding alone would amount to negligence. As rightly pointed out, triple riding may be an offence under the statute, but, so far as civil liability is concerned, apart from triple riding evidence showing that the way in which triple riding was negligent must be available. In the absence of such evidence, the contention that triple riding alone is the cause for accident cannot be accepted. Quantum of compensation.
25. So far as the claim for amputation is concerned, the learned counsel appearing for the claimant relied upon a decision reported in 2014 (1) TNMAC 311 (R.Venkatesan v. V.Jaganathan and two others) in which the claim was enhanced from Rs.2,85,670/- to Rs.14,94,170/- on the ground that when the artificial limb cannot be fixed on account of peculiar nature of amputation, the functional disability was held to be 100%. Multiplier method was adopted for quantification of loss of income.
25.1. Yet another decision relied upon is the one reported in 2017 (1) TNMAC 427 (M.Premkumar v. M.Palaniappan and another) in which award was enhanced from Rs.3,48,947/- to Rs.30,00,000/- wherein when a student of 19 years suffered amputation (up to thigh level) of right leg multiplier method was adopted for quantification of loss of earning capacity. http://www.judis.nic.in 17 25.2. It is also claimed that the claimant is entitled to compensation for loss of child in womb, as per the decision reported in 2013 (1) TNMAC 552 (Rakhi Kothari v. R.Soundarapandian and another) wherein a sum of Rs.2,50,000/- has been awarded for the loss of fetus.
25.3. Yet another decision is the one reported in 2010 (2) TNMAC 486 (DB) (National Insurance Company Ltd., v. G.Parimala alias Nirmala and three others) in which a sum of Rs.2,50,000/- has been awarded for the loss of fetus.
26. The learned AAG would submit that there is a scheme called solatium fund and the claimant is only entitled to make a claim under Solatium Fund Scheme. This scheme reads as under :
“161. Special provisions as to compensation in case of hit and run motor accident.— (1) For the purposes of this section, section 162 and section 163—
(a) “grievous hurt” shall have the same meaning as in the Indian Penal Code, 1860 (45 of 1860);
(b) “hit and run motor accident” means an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose;
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(c) “scheme” means the scheme framed under section 163. (2) Notwithstanding anything contained in the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) or any other law for the time being in force or any instrument having the force of law, the General Insurance Corporation of India formed under section 9 of the said Act and the insurance companies for the time being carrying on general insurance business in India shall provide for paying in accordance with the provisions of this Act and the scheme, compensation in respect of the death of, or grievous hurt to, persons resulting from hit and run motor accidents.
(3) Subject to the provisions of this Act and the scheme, there shall be paid as compensation—
(a) in respect of the death of any person resulting from a hit and run motor accident, a fixed sum of 1[twenty-five thousand rupees]; 1[twenty-five thousand rupees];"
(b) in respect of grievous hurt to any person resulting from a hit and run motor accident, a fixed sum of 2[twelve thousand and five hundred rupees]. 2[twelve thousand and five hundred rupees]."
(4) The provisions of sub-section (1) of section 166 shall apply for the purpose of making applications for compensation under this section as they apply for the purpose of making applications for compensation referred to in that sub-section.
27. The contention of the learned AAG cannot be accepted as this case will not be covered in the category of accidents covered by vehicles which hit and http://www.judis.nic.in 19 run away. The question of hit and run would arise only in cases where the identity of vehicle is not known and where the identity could not be established even after exercising due diligence. So far as this case is concerned, out of two vehicles, identity of one is not in dispute and identity of other vehicle is that of a lorry. It is not in evidence that despite due diligence, the identity of vehicle could not be established. Therefore, this accident is not covered by the cateogry of “hit and run” and therefore, there is no question of applying under solatium fund scheme.
28. The next contention of the learned counsel for the claimant is that in the event of the court finding that full compensation must be paid to the claimant, then, having regard to the facts and circumstances of the case, there may be apportionment of liability equally between the Insurance Co. (of the two wheeler) and the Government. It is contended that triple riding is the cause for the accident and therefore, between the lorry driver and the injured/claimant, there should be apportionment of liability and the Government cannot be saddled with entire liability.
28.1. It is also contended that in any event, the insurance company should be made liable to pay the compensation as payable under 163A of the Motor Vehicles Act.
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29. The learned AAG would emphasize that having regard to the extraordinary sufferings of the deceased having lost the wife and child and having suffered amputation and in the light of the present facts and circumstances, the Government has been impleaded, but, this case shall not be cited as a precedent in any other case. In the light of the arguments advanced, it has to be made clear that in this case, the State is made liable not only on account of non-tracing of the vehicle, but, also on account of other factors peculiar to this case. Therefore, this case shall not be construed as a precedent for making the State liable in all cases where the vehicle is not traceable. Quantum in M.C.O.P.No.259 of 2010
30. Taking the monthly income of the claimant at Rs.3,000/- p.m., adding the future prospective increase in income at 40% and adopting the multiplier of 18, Loss of earning capacity is calculated at Rs.9,07,200/- (Rs.3,000/- + 40/100 x 18 x 12). Awarding Rs.2,00,000/- towards pain and sufferings, Rs.1,00,000/- towards medical expenses, Rs.3,00,000/- towards purchase of artificial caliper, Rs.2,00,000/- towards loss of enjoyment of amenities, Rs.80,000/- towards cost of attendant, Rs.50,000/- towards future medical expenses , Rs.12,800/- towards extra nourishment, Rs.1,00,000/- towards Loss of income for the treatment period, Rs.50,000/- towards mental shock, Rs.2,50,000/- towards Loss of fetus, the total compensation is calculated at Rs.22,50,000/-. The break-up details of the compensation read as under:
http://www.judis.nic.in 21 Loss of earning capacity (Rs.3,000/- + 40/100 x 18 x 12) - Rs. 9,07,200/-
Pain and sufferings - Rs. 2,00,000/-
Medical expenses - Rs. 1,00,000/-
Purchase of artificial caliper - Rs. 3,00,000/-
Loss of enjoyment of amenities -Rs. 2,00,000/-
Cost of attendant -Rs. 80,000/-
Future medical expenses -Rs. 50,000/-
Extra nourishment -Rs. 12,800/-
Loss of income for the treatment period -Rs. 1,00,000/-
Mental shock -Rs 50,000/-
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Total - Rs.20,00,000/-
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Quantum in M.C.O.P.No.260 of 2010:
31. Taking the monthly income at Rs.3,000/-, contribution towards house hold service being taken at Rs.2,000/- p.m., adding 40% towards future prospective increase in income and deducting 1/3rd towards personal expenses, the compensation payable on account of loss of income would be Rs.10,08,072/-
(rounded to Rs.10,08,000/-). Awarding Rs.25,000/- towards cremation expenses, Rs.20,000/- towards transport expenses, Rs.40,000/- towards loss of consortium and Rs.7,000/- towards pain and sufferings during treatment period and medical expenses, the total compensation would be Rs.11,00,000/-. The break-up details of the compensation read as under:
Loss of income - Rs.10,08,000/-
Cremation expenses - Rs. 25,000/-
Transport expenses - Rs. 20,000/-
Loss of consortium - Rs. 40,000/-
Pain and sufferings during treatment
period and medical expenses - Rs. 7,000/-
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Loss of fetus - Rs. 2,50,000/-
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Total - Rs.13,50,000/-
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32. So far as the claim of apportionment of liability is concerned, it cannot be done on the basis of fault (on the part of two vehicles involved in the accident). However, if the claim is considered on the basis of 163A of the Motor Vehicles Act, the liability on the part of the Insurance Company can be calculated and to that extent the Insurance Company can bear the liability.
33. The New Second Schedule of 163A of Motor Vehicles Act is reproduced below:
“THE SECOND SCHEDULE (Section 163A) FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENTS/INJURY CASES CLAIMS
(a) Fatal Accidents: Compensation payable in case of Death shall be five lakh rupees.
(b) Accidents resulting in permanent disability: Compensation payable shall be = [Rs. 5,00,000/- × percentage disability as per Schedule I of the Employee’s Compensation Act, 1923 (8 of 1923)] :
Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees.
(c) Accidents resulting in minor injury: A fixed compensation of twenty five thousand rupees shall be payable:
On and from the date of 1st day of January, 2019 the amount of compensation specified in the clauses (a) to (c) of paragraph (1) shall stand increased by 5 per cent annually”. 3. This notification shall come into form on the date of its publication in the Official http://www.judis.nic.in 23 Gazette.”
34. Out of the total amount of compensation payable to the injured claimant (for himself), a sum of Rs.5,00,000/- shall be payable by the appellant/Insurance Company. As had there been a claim under Section 163A of the Motor Vehicles Act, the statutory liability for the Insurance Company is Rs.5,00,000/- x percentage of disablement as per Employee's Compensation Act. In this case, the percentage of disablement has been fixed at 100%. Therefore, the liability of the Insurance Company would be to the extent of Rs.5,00,000/-.
35. So far as the compensation payable on account of the death of the deceased is concerned, the apportionment of liability would be that, a sum of Rs.5,00,000/- is payable by the Insurance Company as per the amended Section 163A of the Motor Vehicles Act. Though the amendment is long after this accident and though the amendment is not made retrospectively applicable still any social welfare legislation can be interpreted to the extent of benefiting the meek and poorer section of the society. The remaining compensation is ordered to be paid by the Government.
36. In the result, both the appeals filed by the Insurance Company are dismissed and both the Cross Objections filed by the claimant are allowed. http://www.judis.nic.in 24 However, the liability of the Insurance Company is limited to the compensation payable as per the provisions of Section 163A of the Motor Vehicles Act. The remaining amount of compensation shall be paid by the State.
37. The Insurance Company is directed to deposit a sum of Rs.5,00,000/- each in both the claim petitions filed by the claimant, along with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this Judgment. The 4th respondent shall deposit the remaining amount of compensation as ordered by this Court, along with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this Judgment. On such deposit being made, the Tribunal shall transfer the compensation amount to the claimant's account through RTGS within a period of two weeks thereafter. The court fee, if any, shall be paid by the claimant. The connected miscellaneous petitions are closed.
38. Before parting with this case, this Court would like to point out that it must be the vision and mission of the State that all accident victims should get compensation. When the concept of compensation is based on negligence, which lacks intention and when a person stands on road with injury or stands on http://www.judis.nic.in 25 road crying at a dead body, the law should ask him what happened to him and not why it happened to him. Compensation to all victims of road accident irrespective of the negligence is the vision and mission of the law of several countries and to quote one law, it is Road Accident Fund (RAF) Act of South Africa.
“The RAF provides a social security safety net to the country and economy by making available compulsory social insurance cover to all users of South African roads. Contributions to the RAF are done by way of a levy on fuel used for road transportation. The cover extends to all members of society including, but not limited to, the poor, children, legal and illegal immigrants, foreigners, owners and drivers of motor vehicles, as well as their passengers. The social insurance cover, however, does not extend to drivers of motor vehicles that are found to be negligent. “ It is a time to think of such kind of legislation at least in the light of the facts presented by this case.
19.09.2018 Index : Yes / No. Internet : Yes / No. gln/ogy http://www.judis.nic.in 26 DR.S.VIMALA, J.
GLN/ogy C.M.A.Nos.1831 and 1832 of 2016 & Cross Objection Nos.77 & 78 of 2016 & CMP Nos.13438 & 13439 of 2016 19.09.2018 http://www.judis.nic.in