Rajasthan High Court - Jodhpur
Balveer Singh And Anr vs Arjun Singh And Ors on 22 May, 2019
Equivalent citations: AIRONLINE 2019 RAJ 552, (2019) 3 RAJ LW 2382, (2019) 4 ACC 355, (2019) 4 WLC (RAJ) 81, 2020 AAC 284 (RAJ)
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 5233/2011
1. Balveer Singh S/o Lal Singh, aged about 50 years,
2. Smt. Indu W/o Balveer Singh, aged about 47 years,
Both are residents of Simalwara, District Dungarpur.
----Appellants
Versus
1. Arjun Singh Bariya S/o Fulabhai, R/o Saradia, Taluka
Sherara, Godhra, District Panchmahal (Gujrat) (Driver).
2. Anup Singh S/o Solabhai Bariya, R/o Vagjipur, Tehsil
Godhara, District Panchmahal (Gujrat). (Owner)
3. National Insurance Company Limited through Divisional
Manager Udaipur. (Insurer)
----Respondents
For Appellants : Mr. Deelip Kawadia & Mr. G.S.
Rathore.
For Respondent No.3 : Mr. TRS Sodha
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 22/05/2019 Appellants, who have lost their young bachelor son, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act') for enhancement of compensation amount determined and awarded by Motor Accident Claims Tribunal, Dungarpur (for short, 'Tribunal') by judgment and award dated 25th of August, 2011, passed in MAC Case No.2/2005, questioning the impugned judgment and award on two counts; firstly, that the learned Tribunal has grossly erred in absolving the insurer of its liability to pay compensation, and secondly, the amount of (Downloaded on 28/06/2019 at 05:41:31 AM) (2 of 15) [CMA-5233/2011] compensation quantified and awarded by the learned Tribunal is not adequate.
2. By the impugned award, learned Tribunal decided the claim petition of the appellants under Section 166 of the Act and one other claim petition bearing MAC Case No.3164/2005, filed by injured Jitendra Singh, arising out of the same accident. The learned Tribunal awarded compensation to the appellant-claimants to the tune of Rs.6,20,000 under different heads against the claimed amount of Rs.31,75,000 fastening liability on owner and driver of the offending vehicle. The learned Tribunal also awarded interest @6% per annum from the date of filing of the claim petition.
3. The facts, apposite for the purpose of this appeal, are that on the fateful day of 25th of September, 2004, when deceased Prashant along with Jitendra Singh was on way to Ambaji, riding motorcycle bearing registration No.RJ12-2M-3348, near Mobgardh on a sloppy turn, Tempo No. RJ-14-1G-0548 driven at high speed rashly and negligently hit them. The accident resulted in sustaining grave and serious injuries to both and during treatment Prashant, son of present appellants, expired. The said accident was reported to the police and FIR was lodged, which eventually culminated into filing of charge-sheet against first-respondent Tempo driver. The appellant-claimants quantifying the claim of Rs.31,75,000 under different heads, inter-alia, pleaded that at the time of death deceased Prashant was 21 years old and was serving with Contractor Karansingh as Supervisor and thereby earning Rs.4800 per mesem.
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4. The claim petitions were contested by respondents but no reply was filed on behalf of respondent Nos.1 & 2 driver and owner of the offending vehicle. Respondent No.3 insurer filed its reply and denied most of the averments of claim petitions for want of knowledge. Insurer pleaded that the accident did not occur due to rash and negligent driving of the insured Tempo vehicle and furthermore the driver of said vehicle was not holding a valid driving licence as he was holding a licence to ply light motor vehicles. While adverting to the quantum of compensation, the insurer pleaded in the return that appellant-claimants have claimed exorbitant amount of compensation for which they are not entitled.
Learned Tribunal, on the basis of pleadings of rival parties, settled three issues for determination.
5. In order to substantiate claim, first appellant appeared in the witness box and other witnesses including injured Jitendra Singh testified on oath. Besides oral evidence, 157 documents were produced by the claimants, which were exhibited. E.converso, on behalf of respondent-Insurer one witness NAW1 Harish Kumar appeared in the witness box and three documents were exhibited.
6. The learned Tribunal, on appreciation of evidence tendered by rival parties, decided issue No.1 about driving of offending vehicle Tempo by its driver at a high speed in rash and negligent (Downloaded on 28/06/2019 at 05:41:31 AM) (4 of 15) [CMA-5233/2011] manner resulting in death of Prashant and severe injuries to other rider of motorcycle Jitendra in favour of claimants and against respondent No.1 driver. The learned Tribunal, while recording its finding on issue No.1 also relied on documentary evidence produced by the appellants and factum of non-appearance of driver of offending vehicle in the witness box. As regards issue No.2 in respect of absolving insurance company from its liability, the learned Tribunal observed that the driver of insured vehicle was not holding a valid driving licence and accordingly exonerated the insurer.
7. Switching on to the crucial issue about payment of compensation amount, i.e., issue No.3, it was partly decided in favour of appellants and the learned Tribunal while considering income of the deceased to the tune of Rs.4,800/- per month, in the backdrop of parents age of deceased, applied multiplier of 15 and quantified compensation for loss of dependency after making 1/3 deduction for personal expenses of deceased and determined the payable amount of compensation under this head to the tune of Rs.5,76,000/-. Besides that, learned Tribunal also awarded funeral expenses to the tune of Rs.2,000/-, for loss of love, affection and care Rs.10,000/- to each of the appellants and expenses for transportation of dead body Rs.2,000/-. The learned Tribunal also awarded a sum of Rs.20,000 towards expenditure incurred in treatment of the deceased. Accordingly, the learned Tribunal assessed the total amount of compensation to the tune of Rs.6,20,000/-.
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8. Learned counsel for the appellants, Mr. Deelip Kawadia & Mr. G.S. Rathore have contended that finding and conclusion of the learned Tribunal on issue No.2 are erroneous, perverse and contrary to law laid down by the Supreme Court. Learned counsel submits that learned Tribunal has seriously erred in absolving the insurer from its liability to pay compensation inasmuch as there was no violation of the terms of insurance policy by insured. Learned counsel for the appellants has strenuously urged that learned Tribunal while assessing the amount of compensation, has not awarded just compensation in adherence of Section 168 of the Act. Learned counsel for substantiating his contention submits that multiplier applied by the learned Tribunal is ex facie erroneous.
9. Learned counsel would also contend that the learned Tribunal has not awarded any compensation for future prospects and loss of estate whereas in the backdrop of facts and circumstances of the case, learned Tribunal ought to have awarded additional 40% compensation amount towards future prospects and a reasonable sum in connection with loss of estate. Learned counsel for the appellants further submits that the amount awarded by the learned Tribunal towards love, affection & care and for funeral expenses are grossly inadequate. It is also urged by learned counsel that the amount of compensation awarded by learned Tribunal is at lower side, which is liable to be enhanced. In support of these contentions, reliance is placed on following judgments:
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(6 of 15) [CMA-5233/2011] (1) Mukund Dewangan Vs. Oriental Insurance Company Limited : (2017) 14 SCC 663. (2) National Insurance Limited Company Ltd. Vs. Pranay Sethi [2017(13) scale 12].
10. Per contra, Mr. TRS Sodha, learned counsel for the insurer, has conceded on the issue of validity of licence as per dictum in Mukund Dewangan (supra) and awarding of compensation under the head "future prospects" in adherence of Constitution Bench decision in Pranay Sethi (supra). However, it is submitted by learned counsel that learned Tribunal has erred in deducting 1/3 rd from the income of deceased for personal expenses when admittedly deceased was a bachelor. Learned counsel contends that, as a matter of fact, as per verdict in Sarla Verma (Smt.) & Ors. V/s. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121], deduction for personal expenses ought to have been half of the income of the deceased.
I have given my thoughtful consideration to the arguments advanced at Bar, perused the impugned judgment & award as well as materials available on record.
11. The two-fold grievances of the appellants; namely, absolvement of insurer from liability and inadequacy of compensation quantified and awarded by learned Tribunal, merit objective examination in the backdrop of facts and circumstances of the instant case. There remains no quarrel that the learned (Downloaded on 28/06/2019 at 05:41:31 AM) (7 of 15) [CMA-5233/2011] Tribunal is duty bound to determine just compensation in accident cases, as envisaged under Section 168 of the Act.
12. The first question concerning the liability of insurer, on the anvil that the driver of offending vehicle was not holding a valid driving licence, is not tenable. The finding to this effect recorded by learned Tribunal is based on complete misreading of Section 2(15) and 10 of the Act. Learned counsel for the respondent- Insurer has also conceded on this issue while acknowledging the ratio decidendi. In case of Mukund Dewangan (supra), Supreme Court held that a transport vehicle, as per the weight prescribed in Section 2(21) read with Section 2(15) & 2(48) includes an "omnibus", as the gross weight of either of which does not exceed 7500 kg.
13. The Court further concluded that holder of a driving licence to drive the class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kg, or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. The Court held:
"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2)(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in Section 10(2)(e) after deleting four categories or classes of vehicles, i.e. medium goods (Downloaded on 28/06/2019 at 05:41:31 AM) (8 of 15) [CMA-5233/2011] vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.
The definition of 'light motor vehicle' makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. 'Gross vehicle weight' has been defined in section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in Section (Downloaded on 28/06/2019 at 05:41:31 AM) (9 of 15) [CMA-5233/2011] 2(16) - heavy goods vehicle, Section 2(17) - heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."
14. The question relating to adequacy of compensation awarded by learned Tribunal is partly conceded by learned counsel for the insurance company as according to him addition of 40% future prospects towards income of deceased is settled by Constitution Bench of Supreme Court looking to age and status of deceased as self-employed person. Constitution Bench of the Supreme Court in Pranay Sethi (supra) for conclusively deciding future prospects in case of a self-employed person and making the quantum of compensation just and reasonable, held:
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi 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, 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 has not taken note of the decision in Reshma Kumari, 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 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.(Downloaded on 28/06/2019 at 05:41:31 AM)
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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 to 50 years and 10% where the deceased was between the age of 50 to 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 paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of 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% in every three years."
15. At this juncture, Court cannot lose its sight to a significant fact that deceased was a bachelor yet the learned Tribunal has made one-third deduction from his income towards personal expenses for quantifying compensation for loss of dependency. As a matter of fact, learned Tribunal ought to have made one-half deduction from the income towards personal expenses of the deceased as per the dictum of Apex Court in Sarla Verma's case (supra). Further, the learned Tribunal for assessing just compensation towards the head "loss of dependency" has wrongly considered age of the appellants and not of deceased for applying multiplier of 15. In adherence of verdict in Sarla Verma & Ors. (supra), multiplier is to be applied keeping in view age of the (Downloaded on 28/06/2019 at 05:41:31 AM) (11 of 15) [CMA-5233/2011] deceased. Therefore, the learned Tribunal has seriously erred in applying multiplier of 15 and not 18 which is required to be pressed into service in the backdrop of age of the deceased.
16. In the matter of Sarla Verma & Ors. (supra), Supreme Court has discussed threadbare the criteria for deduction towards personal expenses of deceased and application of multiplicand by emphasizing that while applying multiplicand age of the deceased is paramount and not age of the claimant/s. The Court held:-
"We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one.
It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one- third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act, 1988 ('MV Act' for short). But, such percentage of deduction is not an inflexible rule and offers merely a guideline."
xxxx (Downloaded on 28/06/2019 at 05:41:31 AM) (12 of 15) [CMA-5233/2011] "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 dependent 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."
17. For deciding multiplier to be applied, Court has further placed reliance on an English decision, Davies & Anr. Vs. Powell Duffryn Associated Collieries, Limited (1942 AC 601). The Court held:
"41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Column (3) of the table above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in Column (5) of the table above]; and some follow the multiplier actually adopted in the Second Schedule while (Downloaded on 28/06/2019 at 05:41:31 AM) (13 of 15) [CMA-5233/2011] calculating the quantum of compensation [set out in Column (6) of the table above]. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable.
42. 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."
18. In light of the above legal precedents, in my considered opinion, the learned Tribunal has erred in not quantifying just compensation and exonerating the insurer of its liability in view of the fact that appellant-claimants have lost their young son, who could serve and helped them during their old age had he not died in the accident. In absence of their son, they have been deprived of his company, care and nursing during evening phase of their life, which cannot be measured in terms of money.
19. In view of above, while deducting ½ of the income of deceased for his personal expenses and applying multiplier of 18 (Downloaded on 28/06/2019 at 05:41:31 AM) (14 of 15) [CMA-5233/2011] with addition of 40% towards future prospects, the appellants are declared entitled for the enhanced amount of compensation. That apart, under the head "love, affection & care" compensation amount is enhanced from Rs.10,000/- to Rs.20,000/- for each of the them amounting to Rs.40,000/- and they are also allowed Rs.15,000 for loss of estate. As regards funeral expenses awarded by learned Tribunal the same being too low, is enhanced from Rs.2,000 to Rs.15,000/-. Accordingly, the enhanced amount of compensation is worked out as follows:
S. Head Amount Ressessed/ Enhanced
No awarded by denovo Amount
Tribunal assessed (Rs.)
(Rs.) Amount
(Rs.)
1 Loss of 5,76,000 7,25,760 1,49,760
Dependency (future
including Future prospects
Prospects not awarded)
2 Love, Affection & 20,000 40,000 20,000
Care
3 Funeral expenses 2,000 15,000 13,000
4 Transportation 2,000 2,000 -
Charges
5 Medical Treatment 20,000 20,000 -
6 Loss of Estate - 15,000 15,000
Total 6,20,000 8,17,760 1,97,760
The upshot of foregoing discussion is that the instant appeal is allowed in part and award passed by the learned Tribunal is modified. The amount of compensation awarded by learned Tribunal is enhanced by Rs.1,97,760, as indicated hereinabove. The respondents are declared jointly and severally liable to pay the amount of compensation to the appellants. The enhanced (Downloaded on 28/06/2019 at 05:41:31 AM) (15 of 15) [CMA-5233/2011] amount would also carry interest @6% per annum from the date of filing of claim petition by the appellants.
Respondents are directed to ensure payment of compensation amount with interest to the appellants within a period of two months from the date of receipt of certified copy of the judgment.
(P.K. LOHRA),J (Downloaded on 28/06/2019 at 05:41:31 AM) Powered by TCPDF (www.tcpdf.org)