Punjab-Haryana High Court
Pirthi Singh And Another vs Asri And Others on 18 March, 2014
Author: Kuldip Singh
Bench: Kuldip Singh
FAO No. 5442 of 2009, FAO No.1585 of 2010 and -1-
FAO No.1571 of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No. 5442 of 2009
Date of Decision: 18.3.2014
Pirthi Singh and another
..Appellants
Vs.
Asri and others
..Respondents
FAO No.1585 of 2010
Asri and another
..Appellants
Vs.
Pirthi and others
..Respondents
AND
FAO No.1571 of 2009
Smt.Mangti
..Appellant
Vs.
Prithvi Singh and others
..Respondents
CORAM: HON'BLE MR.JUSTICE KULDIP SINGH
Kumari Meenu
2014.03.25 12:22
I attest to the accuracy and
integrity of this document
High Court, Chandigarh
FAO No. 5442 of 2009, FAO No.1585 of 2010 and -2-
FAO No.1571 of 2009
Present: Mr. Jagdish Manchanda, Advocate for the appellants in
FAO No.5442 of 2009 and for respondents No.1 & 2 in
FAO Nos.1571 of 2009 and 1585 of 2010.
Mr. D.K.Dogra, Advocate for respondent No.3 in FAO
No.5442 of 2009.
Mr. S.K.Panwar, Advocate for appellants in FAO No.1585
of 2010.
Mr. Ashish Gupta, Advocate for appellant in FAO No.1571
of 2009.
Mr. R.C.Kapoor, Advocate for Insurance Company in FAO
Nos.1571 of 2009 and 1585 of 2010.
Kuldip Singh, J.
By this single order, I will dispose of three FAO bearing Nos.5442 and 1571 of 2009 and 1585 of 2010. FAO No.1571 of 2009 and 1585 of 2010 have been filed by the claimants seeking enhancement of the compensation. The facts are extracted from FAO Nos.5442 of 2009 and 1585 of 2010.
This appeal has been filed by Pirthi Singh (driver) and Dharam Singh (owner) of the offending vehicle challenging the findings of Motor Accident Claims Tribunal whereby Insurance Company was exonerated from the liability and they were held liable jointly and severally to pay the compensation.
Imran, aged about 25 years, was the son of the appellants. He was working as servant with respondent No.1 Pirthi Singh at a salary of `4000/- p.m. On 28.4.2007 Imran alongwith other passengers was going from village Ajijpur Kalan to Bilaspur in a Tata Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -3- FAO No.1571 of 2009 Sumo bearing No.HR-37-B-2125. When the vehicle reached near village Kapoori Khurd, District Yamuna Nagar, respondent No.1 (driver) hit the vehicle against a tree as a result of which all the occupants received the injuries. Imran succumbed to the injuries. The accident was witnessed by Abdul Rasid, who was coming behind the offending vehicle. FIR No.64 dated 28.4.2007 under Sections 279/337/304-A/427 IPC was registered at Police Station Bilaspur against respondent No.1-driver. It is stated by the appellants that in addition to the salary of `4000/- p.m. deceased Imran was earning `6000/- p.m. from dairy business.
Respondent No.1 in the written statement took the plea that no accident involving the vehicle in question took place. False FIR was registered against him. Respondent No.2 also denied the accident and stated that vehicle was insured with respondent No.3 at the relevant time. Respondent No.3 in the written statement took the plea that driver/respondent No.1 was not having valid driving licence at the time of accident. All the averments of the claim petition were denied in toto.
From the pleadings of the parties, the following issues were framed:
(i) Whether the death of Shri Imran took place in an accident dated 28.4.2007 out of the use of Tata Sumo bearing No.HR 37-B-2125? OPP.
(ii)If issue No.1 is proved, to what amount of compensation claimants are entitled to and from whom?Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -4- FAO No.1571 of 2009
OPP.
(iii)Whether claim petition is barred by the principles of estoppels, waiver and acquiescence? OPR (3).
(iv)Whether present petition is bad for misjoinder and non joinder of necessary parties? OPR(3)
(v)Whether respondent No.1 did not possess effective driving licence as on the date of accident, if so, its effect? OPR(3).
(vi)Whether the vehicle in question was being driven in violation of terms and conditions of the insurance policy without holding registration certificate and fitness certificate of the vehicle in question, if so, its effect? OPR(3).
(vii)Relief.
While deciding issue no.1, the Tribunal took the view that deceased Imran was travelling in the offending vehicle as gratuitous passenger. No premium was paid by the owner of the offending vehicle covering the risk of the passengers. It was further observed that though policy Ex.R1 was comprehensive in which the capacity of passengers and driver was recorded, yet no extra premium was paid to cover the risk of passengers. Therefore, Insurance Company is not liable to reimburse the injured. Case law on the point was also discussed and the Tribunal passed the award for `2,44,000/- alongwith interest @ 7.5% p.a. to be paid by respondents No.1 and 2 in equal shares jointly and severally.
I have heard learned counsel for the parties and have also gone through the case file carefully.
Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -5- FAO No.1571 of 2009
Learned counsel for the owner has argued that deceased was not a gratuitous passenger and policy Ex.RI covered the passengers travelling in the vehicle. Therefore, owner is not liable to pay the compensation and that the Insurance Company is liable to reimburse the insured.
Now the question would arise as to whether in case of comprehensive policy, a gratuitous passenger is entitled to avail the remedy under Section 166 of Motor Vehicle Act.
The examination of comprehensive policy Ex.RI shows that no extra premium was paid for the passengers. However, the capacity of passengers in the vehicle is mentioned in the Insurance policy. Meaning thereby that the Insurance Company was aware of number of passengers which can be carried in the offending vehicle.
In United India Insurance Company Vs. Tilak Singh 2006 (2) CTC 661 it was held by Hon'ble the Supreme Court that under the Act, Policy insurer was not required to cover persons carried as pillion riders or gratuitous occupants in a private car. Thereafter, Tariff Advisory Committee (for short `TAC') issued circular No.MV No.1 of 1978 dated 17.3.1978, which reads as under:
"Insurance Company's liability in respect of Gratuitous Passengers conveyed in a private Car- Standard Form for Private Car Comprehensive Policy Section II - Liability to Third-Parties. I am directed to inform Insurers that advices have been received from the Tariff Advisory Committee to the effect that Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -6- FAO No.1571 of 2009 since the industry had all these years holding the view on liability the same practice should continue.
In order to make this intention clear, Insurers are requested to amend clause 1(a) of Section II of the Standard Private Car Policy by incorporating the following words after the words 'death of or bodily injury to any person' appearing therein:
'Including occupants carried in the motor car provided that such occupants are not carried for hire or reward' I am accordingly to request Insurers to make the necessary amendment on sheet 38 of the Indian Motor Tariff pending reprinting of the relevant sheet."
Therefore, in view of the directions of 'TAC' in case of comprehensive policy even the gratuitous passengers are entitled to compensation even though no extra premium has been paid for the passengers. It being so, the Tribunal erred in holding that Insurance Company is absolved from its liability to make the payment. Consequently FAO No.5442 of 2009 filed by the owner will have to be allowed.
Now coming to the computation of the compensation, it comes out that deceased Imran aged 25 years, was servant of respondent No.1 Pirthi Singh. The Tribunal determined his income at `3000/- p.m. 50% income was deducted towards personal expenses as he was unmarried. The Tribunal applied multiplier of 13 taking into consideration the age of the claimants.
Learned counsel for the claimants has argued that in this case, the multiplier should be applied as per the age of the deceased Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -7- FAO No.1571 of 2009 and that the Tribunal has not added future prospects. The Tribunal awarded only `5000/- for last rites and ceremonies and only `5000/- for loss of estate.
I am of the view that Tribunal erred in not adding the future prospects. Therefore, 50% income as future prospects is added. The income of the deceased comes to `4500/- from which 50% is deducted towards personal expenses. Since deceased was unmarried, the dependency of the claimant comes to `2250/-.
In Amrit Bhanu Shali and others Vs. National Insurance Co.Ltd. and others 2013(3) RLW 2748, it is held that multiplier is to be based on the age of the deceased and not on the basis of age of the dependents.
Learned counsel for the Insurance Company relied upon another judgment of Hon'ble the Supreme Court in New India Assurance Co.Ltd. Vs. Shanti Pathak and others 2007 ACJ 2188 and has argued that multiplier as per the age of the claimant should be applied.
A perusal of the judgment of New India Assurance Co.Ltd. Vs. Shanti Pathak and others (supra) shows that multiplier in the said case was considered in the peculiar facts of the case and it does not lay down general law. However, in latest judgment of Amrit Bhanu Shali and others (supra), it was discussed as to whether multiplier was to be applied on the basis of the age of the deceased or on the basis of the age of the Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -8- FAO No.1571 of 2009 dependents? The Apex Court observed as under:
"The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.
In the case of Sarla verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13."
In this case, age of the deceased was 25 years, therefore, multiplier of 18 is applied. The amount of compensation thus comes to 2250x12x18 = `4,86,000/-.
In view of the latest judgment of the Apex Court in Sarla Verma (supra), `25,000/- on account of last rites and ceremonies are allowed. Another sum of Rs.One lac for loss of love and affection to the mother is allowed. The amount of compensation comes to `6,11,000/-. As such, the compensation is enhanced from `2,44,000/- to `6,11,000/-. The enhanced compensation shall be paid to the claimants in equal share with the same rate of interest awarded by the Tribunal, by depositing the same in the account of claimants to be Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -9- FAO No.1571 of 2009 furnished before the Tribunal.
Consequently, FAO Nos.5442 of 2009 and 1585 of 2010 are allowed.
FAO No.1571 of 2009
In this appeal, regarding the same accident, another award was passed by Motor Accident Claims Tribunal, Karnal on 18.8.2009. In this case, Sanjiv Kumar @ Sanjay who was one of the occupants of the aforesaid Tata Sumo, died. He was aged about 24 years. His parents had filed claim petition under Section 166 of Motor Vehicles Act, 1988. In this case, the Tribunal passed the award to the tune of `5,91,600/-in favour of claimant No.1 Mangti Devi (mother of deceased) and respondent No.4 Smt.Sushma Devi (widow of the deceased (proforma respondent). `2,93,300/- were ordered to be paid to mother Smt.Mangti Devi and `2,98,300/- were ordered to be paid to the widow Smt.Sushma Devi.
The Tribunal awarded compensation under the following heads:
Sr.No. Head under which amount Amount of compensation awarded
1. Loss of dependency ` 5,61,600/-
2. Medical Expenses ` 10,000/-
3. Transportation ` 5,000/-
4. Cremation and last rites ` 5,000/-
5. Expenses towards ` 10,000/-
consortium Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -10- FAO No.1571 of 2009
Total ` 5,91,600/-
In this case, the Tribunal has assessed the monthly income of the deceased at `3900/-. The dependency of the mother and proforma respondent No.4 was assessed at `2600/- after deducting the amount of `1300/- p.m. towards personal expenses, the multiplier of 18 was applied. Therefore, annual dependency was assessed at `31,200/-.
I am of the view that in this case also, the Tribunal has not added the future prospects as the age of the deceased was 25 years. Therefore, 50% future prospects i.e. `1950/- are added and total income comes to `5850/-. `1950/- are deducted towards personal expenses. Therefore, dependency of claimant No.1, mother and proforma respondent No.4 widow comes to `3900/- p.m. Multiplier of 18 was already applied, therefore, amount of compensation comes to `3900x12x18 = `8,42,400/-.
Learned counsel for the appellants has pressed for enhancement of compensation for last rites and ceremonies and also the compensation under the head of loss of love and affection to the mother and loss of consortium to the wife.
I am of the view that in view of the judgment of Sarla Verma (supra), ` 25,000/- on account of last rites and ceremonies are allowed. `One lac is allowed to the mother for loss of love and affection. Another sum of `One lac is allowed to respondent No.4, Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh FAO No. 5442 of 2009, FAO No.1585 of 2010 and -11- FAO No.1571 of 2009 widow for loss of consortium. Therefore, following compensation is awarded in place of the compensation awarded by the Tribunal.
Loss of Dependency : ` 8,42,400/-
Loss of love and affection : ` 1,00,000/-
to mother
Loss of consortium to the widow : ` 1,00,000/-
Medical Expenses : ` 10,000/-
Transportation of dead body : ` 5,000/-
Last rites and ceremonies : ` 25,000/-
Total : `10,82,400/-
FAO No.1571 is accordingly allowed.
Now coming to the question of apportionment, it is to be noted that Sushma Devi, widow is quite young and she has to suffer for the whole of her life. Therefore, out of the total compensation awarded, 30% amount shall go to the mother Mangti Devi whereas 70% amount shall go to the widow Smt.Sushma Devi. The enhanced amount of compensation shall be paid alongwith interest @ 6% p.a.,as allowed by the Tribunal, from the date of filing of claim petition till realisation. The amount shall be paid by depositing the same in the accounts of claimant No.1 Smt.Mangti Devi (mother of deceased) and respondent No.4 Smt.Sushma Devi (widow of the deceased) in their bank accounts, which shall be furnished before the Tribunal.
( Kuldip Singh) 18.3.2014 Judge Meenu Kumari Meenu 2014.03.25 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh