Himachal Pradesh High Court
Shriram General Insurance Company Ltd vs Ram Krishan And Others on 27 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO(MVA) No. 53 of 2018.
Judgment reserved on: 16.07.2018 Date of decision: 27th July, 2018.
Shriram General Insurance Company Ltd. ...... Appellant
Versus
Ram Krishan and others
Coram
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
..... Respondents
Whether approved for reporting? No 1
For the appellant : Mr. Jagdish Thakur, Advocate.
For the respondents : Mr. Divya Raj Singh, Advocate, for
respondents No. 1 and 2.
Mr. Virender Sharma, Advocate,
Vice Mr. G.S. Rathour, Advocate,
for respondent No.3.
Tarlok Singh Chauhan, Judge
This appeal is filed by the appellant-Insurance Company against the award dated 01.12.2017 passed by learned Motor Accident Claims Tribunal-1, Sirmaur District at Nahan in M.A.C. Petition No. 32- MAC/2 of 2015 whereby he awarded a sum of Rs. 6,18,000/- alongwith 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 2 ......
7.5% interest per annum from the date of filing of the petition till deposit in favour of the claimants.
.
2. Brief facts giving rise to the present appeal are that the claimants/respondents No. 1 and 2 sought compensation on account of the death of their father Sh. Sant Ram, which took place in Motor Vehicle Accident on 23.11.2014 at about 9.20 a.m. near Sail, Tehsil Sangrah involving bus bearing registration No. HP-71-1629 owned by respondent No.3 and insured with the appellant. The deceased boarded the bus from village Haripurdhar to Solan, which was on its way from Ratwa to Baddi via Haripurdhar. When the bus reached near Sail (Chunvi), Tehsil Sangrah, the same met with an accident on account of rash and negligent driving of its driver. The bus went off the road and rolled down into a gorge causing multiple injuries to the driver, deceased and other passengers. The deceased had sustained multiple injuries on his head, as a result whereof, he succumbed to the same on the spot. The matter was reported to the police of Police Station, Sangrah and a case was registered under Sections 279, 337, 304-A IPC. It was alleged that the deceased was 64 years of age and was earning Rs.27,000/- per month. It was further alleged that the claimants were totally dependent upon the deceased and after his death they have been deprived of love and affection.
3. The respondent No.3/owner contested the petition by filing reply wherein preliminary objections qua maintainability and non-joinder of necessary parties were raised. On merits, the factum of accident and death ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 3 ......
were not denied. However, it was denied that the accident had taken place due to rash and negligent driving of the bus in question by its driver and it .
was averred that the accident took place due to negligence on the part of the Public Works Department as its worker had stocked some debris at the place of the accident and the road was also damaged. It was also averred that the amount of compensation as claimed was highly excessive and without any legal basis.
4. As regards the appellant, it too, contested the petition by filing reply wherein preliminary objections qua maintainability, driver not having a valid and effective driving licence and the vehicle was being driven in violation of the terms and conditions of the insurance policy and against the provisions of the Motor Vehicles Act. It was averred that the bus in question was being plied in contravention to the provisions of the Motor Vehicles Act and without valid documents like registration certificate, fitness certificate and route permit etc. It was also submitted that both the claimants being married sons of the deceased and having their own income besides living separate and were not dependent on the income of the deceased and thus were not entitled to any compensation.
5. After completion of the pleadings, the learned Tribunal on 29.3.2016 framed the following issues:
1. Whether the petitioners have proved that due to the rash and negligent driving of bus driver Kapil while driving bus No. HP-71-
1629 on 23.11.2014 around 9.20 a.m. near Sail, Tehsil Sangrah, death of Sant Ram was caused, as alleged? OPP ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 4 ......
2. Whether the petitioners are entitled for compensation. If so, to what amount and from whom? OPP
3. Whether driver of the vehicle did not possess a valid and effective .
driving licence, as alleged? OPR-2.
4. Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy, as alleged? OPR-2.
5. Whether the risk of the deceased was not covered under the policy, as alleged? OPR-2.
6. Relief.
6. After recording the evidence and evaluating the same, the learned Tribunal below allowed the petition by awarding a sum of Rs.
6,18,000/- alongwith 7.5% interest per annum from the date of filing of the petition till its realisation.
7. Aggrieved by the award, the appellant has filed the instant appeal mainly on the ground that the compensation as awarded is not in tune with the judgment passed by the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi, 2017 ACJ, 2700.
I have heard learned counsel for the parties and have gone through the material placed on record.
8. There can be no quarrel with the proposition that the award of compensation under the Motor Vehicles Act both in cases of injury and death are now adjudicated and determined in accordance with the Constitutional Bench judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
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9. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of .
the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two-Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
10. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:-
"i) The two-Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%.
Actual salary should be read as actual salary less tax.
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(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years .
and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
11. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are self-speaking.
12. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus:-
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"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general .
practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one- fifth (1/5th) where the number of dependent family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 8
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21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an .
operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in Trilok specified in actually used in envisaged in adopted in Chandra as second Second Susamma Trilok clarified in column in the Schedule to MV Thomas Chandra Charlie Table in Act (as seen Second from the r Schedule to quantum of MV Act compensation) (1) (2) (3) (4) (5) (6) Up to 15 years - - - 15 20 15 to 20 years 16 18 18 16 19 21 to 25 years 15 17 18 17 18 26 to 30 years 14 16 17 18 17 31 to 35 years 13 15 16 17 16 36 to 40 years 12 14 15 16 15 41 to 45 years 11 13 14 15 14 46 to 50 years 10 12 13 13 12 51 to 55 years 9 11 11 11 10 56 to 60 years 8 10 9 8 8 61 to 65 years 6 8 7 5 6 Above to 65 5 5 5 5 5 years
13. Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
14. It is vehemently argued by Mr. Jagdish Thakur, learned counsel for the appellant that the learned Tribunal below has failed to take ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 9 ......
into consideration that the claimants were married and were having their own independent source of income and, therefore, they are not entitled to .
any compensation. Undoubtedly, it has come on record that the claimants were married but that alone does not mean that they are not entitled to any compensation whatsoever.
15. In Manjuri Bera vs. Oriental Insurance Company Ltd.
(2007) 10 SCC 643, the Hon'ble Supreme Court held that even if there was no dependence, there is a loss to the estate and a person who is a legal representative but not dependent can yet be a beneficiary of the estate. It shall be apposite to refer to the necessary observations as contained in paras 6 and 7 of the judgment, which read thus:
6. Even if there was no dependence, there is a loss to the estate and a person who is a legal representative but not dependant can yet be a beneficiary of the estate. It was, therefore, submitted that a realistic and pragmatic view should be taken.
7. "8. Section 166 of the Act corresponds to Section 110 of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Old Act') and the same reads as follows:
'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 ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 10 ......
(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 authorized 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 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.
xx xx xx (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.'
9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 11 ......
sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading .
those legal representatives as respondents.
10. Section 168 of the Act reads as follows:
'168. Award of the Claims Tribunal:- On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 12 ......
Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.' .
The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) of Code of Civil Procedure, 1908 (in short the 'CPC'), "legal representative" means a person who, in law, represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1)(g).
12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique (AIR 1989 SC 1589) the definition contained in Section 2(11), CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. (AIR 1987 SC 1690) a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
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13. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim .
application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.
r14. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163-A."
These aspects were highlighted in Smt. Manjuri Bera v. The Oriental Insurance Co Ltd. and Anr. (2007) 10 SCC 643 :(SCC pp. 646-48, paras 8-14.
16. A learned Full Bench of the Hyderabad High Court in Dr. Gangaraju Sowmini vs. Alavala Sudhakar Reddy and another AIR 2016 Hyderabad 162, after placing reliance on the judgment of Manjuri Bera's case held that an application for compensation can be made either by the injured or the legal representatives of the deceased. Dependency is a matter, which would have a bearing on the issue with regard to fixation of compensation and apportionment of compensation if there are more than one claimant. It is apt to reproduce the relevant observations as contained in paras 14 and 16 of the judgment, which read thus:
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"14. In view of the plain language under Section 166 of the Motor Vehicles Act, 1988, which is a substantive provision for making application for compensation, it is clear that either the injured .
person or the legal representative of the deceased are entitled to make an application for award of compensation. Dependency is a matter, which will have a bearing on the issue with regard to fixation of compensation and apportionment of compensation if there are more than one claimant, but at the same time, in view of the plain and unambiguous language used under Section 166 of the Motor Vehicles Act, the term legal representative does not mean dependant only. It is fairly well settled that the legal representative is one who can represent the estate of the deceased. Further, in the judgment in Manjuri Beras case (9 supra), the Honble Supreme Court has held that the no fault liability envisaged under Section 140 of the Motor Vehicles Act is distinguishable from the rule of strict liability. In the aforesaid judgment, it is further held that right to make an application has to be considered in the background of right to entitlement. It is further held that while assessing the quantum of compensation, the multiplier system is applied because of deprivation of dependency. In the same judgment, it is also held that since the amount to be awarded under Section 140 of the Motor Vehicles Act is a fixed/crystalised amount, the same is to be considered as a part of the estate of the deceased. Apart from the same, there can be a claim for compensation under other conventional heads which are to be necessarily incurred in the case of deaths.
** ** **
16. In view of the clear and unambiguous language under Section 166 of the Motor Vehicles Act, it is clear that application can be made either by the injured or the legal representatives of the deceased. Though legal representative is not defined under the provisions of the Motor Vehicles Act, 1988, from Rule 2(g) of ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 15 ......
the A.P.Motor Vehicles Rules, 1989, it is clear that the definition of legal representative is given same meaning as defined under Section 2(11) of the Code of Civil Procedure. In view of the .
judgment of Honble Supreme Court in Manjuri Beras case (9 supra), it is clear that the compensation which is payable on account of no fault liability will form part of the estate of deceased.
In that view of the matter, there is no basis for contending that the application is to be filed only by the dependants. As we have held that dependency is a matter to be taken into consideration for award of compensation and merely because one is not dependant, that by itself, is no ground for not entertaining any claim made for grant of compensation under the Motor Vehicles Act. In view of the clear language under Section 166 of the Act and in view of the judgment of Honble Supreme Court in Manjuri Beras case (9 supra), wherein, it is held that the compensation to be awarded under Section 140 of the Motor Vehicles Act will form part of the estate of deceased, and further, as the Act also provides for compensation on other conventional heads, we are of the view that the non-dependant also can lay a claim by filing application under Section 166 of the Act. It is also to be noticed that the situations may arise, where, one may have suffered injuries initially but ultimately after filing a claim, may have succumbed to such injuries also. In such an event, lot of amount would be spent towards hospitalisation etc., and as already discussed in the judgment of Honble Supreme Court in Montford Brothers case (5 supra), it is common in the Indian society, where, the members of the family who are not even dependant also can extend their support monetarily and otherwise to the victims of accidents to meet the immediate expenditure for hospitalization etc., in such cases, unless the legal representatives are allowed to continue the proceedings initiated by the person who succumbs to injuries subsequently, such claims will be defeated and that will also defeat the very object and intentment of the Act. Any such measure would ::: Downloaded on - 27/07/2018 23:03:40 :::HCHP 16 ......
be wholly unequitable and unjust. Plainly, that would never be intent of any piece of legislation. For the aforesaid reasons and in view of the language under Section 166 of the Motor Vehicles Act, .
1988 r/w. Rule 2(g) of the A.P. Motor Vehicles Rules, 1989, we are of the view that even the legal representatives who are non- dependants can also lay a claim for payment of compensation by making application under Section 166 of the Motor Vehicles Act.
17. Evidently, the only other heads under which the claimants can in addition to Rs.50,000/- awarded under Section 140 of the Motor Vehicles Act, be entitled compensation would be towards 'funeral expenses' at the rate of Rs.15,000/- and 'loss of estate' at the rate of Rs.15,000/- on the basis of the judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra). Thus, the claimants in this manner can be held entitled to a total compensation of only Rs. 80,000/- (Rs.50,000/- + Rs. 15,000/- + Rs.15,000/-) as against the compensation of Rs.6,18,000/- as awarded by the learned Tribunal.
18. The findings recorded by the learned Tribunal below are definitely perverse as the claimants have clearly failed to prove on record that they were dependent on the income of the deceased.
19. In view of the aforesaid discussion, the present appeal is allowed in the aforesaid terms, leaving the parties to bear their own costs.
The pending application, if any, also stands disposed of.
27th July, 2018 (Tarlok Singh Chauhan),
(GR) Judge
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